IN THE COURT OF APPEAL OF MALAYSIA Coram: Tengku Maimun Tuan Mat, JCA; Abdul Rahman Sebli, JCA; Suraya Othman, JCA Majlis Perbandaran Seremban v Era Baru Sdn Bhd and Another Appeal Citation: [2018] MYCA 193 Suit Number: Civil Appeal Nos. N 02(NCVC)(W) 1245 07 2017 & N 02(NCVC)(W) 1398 07/2017 Date of Judgment: 22 June 2018 Contracts & commercial Contract to carry out road construction works Costs of construction works agreed to be shared by three parties including the plaintiff and the defendant Failure of the third party to contribute Whether the plaintiff had a cause of action against the defendant Litigation & court procedure Whether the plaintiff s claim barred by limitation by virtue of section 6(1) of the Limitation Act 1953 Introduction JUDGMENT [1] There were two appeals before us, one filed by the appellant/ defendant and the other filed by the appellant/ plaintiff. Both appellants were dissatisfied with part of the decision of the learned Judicial Commissioner (JC) of the High Court at Seremban in allowing part of the plaintiff s claim. The Background Facts [2] The defendant, a local authority established under the Local Authority Act 1976 engaged the plaintiff to carry out road construction works known as Cadangan Menaiktaraf Jalan Labu Lama, Bandar Seremban, Seremban ( the project ). [3] The cost of the project was RM2,880,596.80 which was to be shared between the plaintiff, the defendant and Panji Timor Sdn Bhd ( PTSB ), reason being the project had to be undertaken due to the development of Project Terminal 2 by the plaintiff and Project Pembangunan Semula Terminal Bas Seremban by PTSB. [4] By a letter dated 27.10.2003, the defendant wrote to the plaintiff as follows: MALAYSIAN JUDGMENTS Page: 1 of 12
"2. Berdasarkan pembahagian kadar sumbangan mengikut jumlah panjang jalan yang masingmasing 375m untuk Panji Timor Sdn Bhd dan 575m untuk Era Baru Sdn Bhd dan Majlis Perbandaran Seremban, jumlah sumbangan untuk semua pihak adalah seperti berikut: 2.1 Jumlah sumbangan untuk 1 meter = Kos Projek Panjang Jalan = RM2,880,596.80 950 = RM3,032,2071 2.2 Jumlah sumbangan yang perlu dibayar oleh Era Baru Sdn Bhd dan Maljis Perbandaran Seremban adalah RM3032,3071 x 575m : RM1,743,519.20 50% = RM1,743,519.20 2 : RM871,759.60 3. Sila pihak tuan mengemukakan cadangan jadual pembayaran untuk tindakan pihak Majlis selanjutnya.. [5] The plaintiff responded to the defendant s request for the schedule of payment vide a letter dated 4.11.2003. In the said letter, the plaintiff stated that: "Sukacita kami mencadangkan jadual pembayaran seperti berikut: 1. Jumlah kos pembinaan mengikut skop kerja dan pelan yang disertakan adalah sebanyak RM2,880,596.80 2. Jumlah sumbangan ERA BARU SDN BHD: = RM2,880,596.80 x 575 x ½ 950 = RM3.032,2071 x 575 x ½ = RM871,759.60 3. Baki kos kontrak yang berjumlah RM2,008,837.20 hendaklah dibayar kepada ERA BARU SDN BHD oleh Majlis Perbandaran Seremban untuk kerja kerja pembinaan jalan tersebut. Daripada jumlah kos ini, Syarikat Panji Timor Sdn Bhd perlu membayar MALAYSIAN JUDGMENTS Page: 2 of 12
RM2,880,596.80 x 375 = RM1,137,077.60 950 kepada Majlis Perbandaran Seremban.. [6] The total cost to be shared by the parties therefore were as follows: a. Plaintiff RM871,759.60 b. Defendant RM871,759.60 c. PTSB RM1,137,077.60 [7] The defendant subsequently paid the sum of RM871,759.60 to the plaintiff. PTSB however failed to pay its share of contribution for the project. The plaintiff turned to the defendant for assistance. These culminated in a meeting on 25.4.2007 between the plaintiff, the defendant and PTSB. What was agreed in the meeting was confirmed by the plaintiff through its letter dated 4.5.2007 to the defendant set out below: 3. Hasil daripada perbincangan yang tersebut di atas, pihak Era Baru Sdn. Bhd. dan pihak Panji Timor Sdn. Bhd. telah bersetuju bahawa kos sumbangan menaiktaraf Jalan Labu Lama, Bandar Seremban sepanjang 375 meter ditetapkan pada RM670,000 00 dan pembayaran akan dibuat kepada Era Baru Sdn. Bhd. secara ansuran iaitu selama enam bulan bermula dari bulan Mei 2007 sehingga bulan Oktober 2007 seperti berikut: (i) RM110,000 00 pada atau sebelum 31hb Mei 2007; (ii) RM110,000 00 pada atau sebelum 30hb Jun 2007; (iii) RM110,000 00 pada atau sebelum 30hb Julai 2007; (iv) RM110,000 00 pada atau sebelum 31hb Ogos 2007; (v) RM110,000 00 pada atau sebelum 30hb September 2007; dan (vi) RM120,000 00 pada atau sebelum 31hb Oktober 2007.. [8] Pursuant to the agreement reached on 25.4.2007, the plaintiff issued two (2) letters of demand to PTSB dated 10.8.2007 and 15.2.2008 demanding for the sums of RM330,000.00 and RM670,000.00, respectively. Notwithstanding the demands, PTSB failed to make payment. [9] Through various letters and meetings, the plaintiff sought payment of PTSB s contribution from the defendant. In other words, faced with such difficulty of getting paid by PTSB, the plaintiff requested the defendant to make payment first to the plaintiff and to later claim from PTSB. [10] The defendant made no such payment as requested by the plaintiff. MALAYSIAN JUDGMENTS Page: 3 of 12
Proceedings in the High Court [11] The plaintiff sued the defendant for the sum of RM1,137,077.60. The relevant paragraphs of the amended statement of claim are reproduced below for ease of reference: "8. Pada setiap masa material, adalah tanggungjawab Defendan untuk menuntut jumlah wang RM1,137,077.60 daripada PTSB (selepas ini dirujuk sebagai "Jumlah Sumbangan tersebut ) dan membayar kepada Plaintif bagi kerja kerja menaiktaraf Jalan Labu Lama, Bandar Seremban, Seremban tersebut Namun demikian, Defendan telah gagal, enggan dan/atau ingkar untuk menjalankan tanggungjawabnya walaupun Plaintif telah berulang kali menuntut Jumlah Sumbangan daripada Defendan. 14. Pada 25.4.2007, satu perbincangan telah diadakan di bilik mesyuarat Defendan yang dihadiri oleh wakil wakil bagi pihak Plaintif, Defendan dan PTSB. Dalam perbincangan tersebut, Plaintif dan PTSB telah bersetuju bahawa kos sumbangan menaiktaraf Jalan Labu Lama Bandar Seremban sepanjang 375 meter tersebut ditetapkan pada RM670,000.00 dan pembayaran tersebut akan dibuat kepada Plaintif secara ansuran selama enam bulan bermula dari bulan Mei 2007 sehingga Oktober 2007. Plaintif telah menyatakan hasil perbincangan tersebut dalam suratnya bertarikh 4.5.2007 kepada Defendan. 20. Memandangkan PTSB telah gagal untuk menjelaskan jumlah sebanyak RM670,000.00 tersebut dan Defendan pula telah gagal dan/atau enggan untuk menuntut bayaran sebanyak RM670,000.00 daripada PTSB, Plaintif melalui surat bertarikh 6.3.2009 telah menuntut daripada Defendan Jumlah Sumbangan tersebut yang merupakan jumlah sumbangan yang dipersetujui pada 4.11.2003. 36. Kegagalan Defendan untuk menjalankan tanggungjawabnya dalam memastikan PTSB membayar Jumlah Sumbangan tersebut kepada Plaintif telah menyebabkan Plaintif mengalami kerugian yang besar. Defendan telah gagal, enggan dan/atau ingkar untuk menepati janjinya dalam memastikan Plaintif mendapat Jumlah Sumbangan tersebut.. [12] The defendant denied the plaintiff s claim on two grounds. First, that the plaintiff had no cause of action against the defendant and second, that the plaintiff s claim is barred by limitation. MALAYSIAN JUDGMENTS Page: 4 of 12
[13] On the first ground, the defendant contended that the plaintiff s claim should be brought against PTSB based on an agreement reached between the plaintiff and PTSB on 25.4.2007. [14] On the second ground, the defendant s plea of limitation arose from the fact that the project was completed on 30.3.2004 and the Certificate of Practical Completion was issued on 13.8.2004. The plaintiff s claim was filed in January 2015. Findings of the High Court [15] The learned JC considered the following issues: (i) whether the defendant was responsible to claim from PTSB the sum of RM1,137,077.60 and to pay the said sum to the plaintiff; (ii) whether pursuant to the agreement reached in the meeting of 25.4.2007, it was the responsibility of the plaintiff to claim the said sum direct from PTSB; and (iii) whether the plaintiff s claim is barred by limitation. [16] Her Ladyship alluded to the oral testimony of Loo Way Men (SP1) and Hamizam bin Ahmad (SD1) and the various documentary evidence and in particular, to the following evidence of SP1 on the meeting dated 25.4.2007: "A: In the meeting which was attended by the representatives of the plaintiff, the defendant and PTSB, the plaintiff and PTSB agreed that the contribution cost of upgrading Jalan Labu Lama, for a length of 375 meters be fixed at RM670,000.00 and that the said payment would be made by PTSB to the plaintiff in instalments for a period of 6 months commencing from May 2007 until October 2007 as follows: a. RM110,000.00 on/before 31.5.2007 b. RM110,000.00 on/before 30.6.2007 c. RM110,000.00 on/before 30.7.2007 d. RM110,000.00 on/before 31.8.2007 e. RM110,000.00 on/before 30.9.2007 and f. RM120,000.00 on/before 31.10.2007 Q: How did the plaintiff arrive to the sum of RM670,000.00? A: In the meeting organized by the defendant s Yang Dipertua Dato Hj Abdul Halim bin Hj Abd. Latif, PTSB requested that the said Contribution Sum of RM1,137,077.60 be reduced to RM670,000.00 and be paid by six (6) instalments as stated above. MALAYSIAN JUDGMENTS Page: 5 of 12
Q: Why did the plaintiff agree to the amount of RM670,000.00? A: The plaintiff agreed to the amount of RM670,000.00 because the Yang Dipertua Dato Hj Abd. Halim bin Hj. Abd. Latif told us to accept the amount of RM670,000.00. It is also because we needed the payment badly to solve the plaintiff s cash flow problems, to pay the plaintiff s subcontractors and suppliers in respect of the said Jalan Labu Lama project. Q: Did the plaintiff receive the amount of RM670,000.00 from PTSB? A: No.. [17] Having alluded to the evidence, the learned JC resolved all the issues in favour of the plaintiff but nevertheless entered judgment against the defendant for only RM670,000.00. In essence the learned JC concluded that pursuant to the meeting on 25.4.2007, it was the defendant s responsibility to obtain payment of RM670,000.00 for the plaintiff. On limitation, her Ladyship rejected the plea by the defendant on the ground that there were continuous negotiations between the plaintiff and the defendant. [18] Aggrieved by the decision of the High Court, both the plaintiff and the defendant appealed to this Court. The Appeal [19] Before us, parties canvassed the following issues: (i) whether in the light of the agreement reached on 25.4.2007, the plaintiff had a cause of action against the defendant; (ii) if the plaintiff had a cause of action, whether the plaintiff was entitled to the full contribution sum of RM1,137,077.60 from the defendant; and (iii) whether the plaintiff s claim is barred by limitation by virtue of section 6(1) of the Limitation Act 1953 ( the Limitation Act ). [20] It was submitted for the defendant that the learned JC seriously misdirected herself on the facts as there was no agreement at the meeting on 25.4.2007 that it was the responsibility of the defendant to get the payment of RM670,000.00. [21] On limitation, learned counsel for the defendant submitted that the plaintiff s cause of action accrued when the Certificate of Practical Completion was issued on 13.8.2004. Hence, the plaintiff s cause of action became time barred on 14.8.2010. In this regard, it was submitted for the defendant that the learned JC erred in law in finding that there were negotiations between the plaintiff and the defendant beginning from 2003 until 2011. [22] For the plaintiff, learned counsel submitted that the learned JC erred in her findings that the total MALAYSIAN JUDGMENTS Page: 6 of 12
sum payable by the defendant to the plaintiff was RM670,000.00 and not RM1,137,077.60 as claimed by the plaintiff. The learned JC, according to the plaintiff, failed to appreciate that the reduction was on the suggestion of the defendant s representative; that the plaintiff had never waived its right to claim for the whole sum; that the agreement was never acknowledged by PTSB and that the plaintiff had consistently claimed the contribution sum from the defendant. [23] On the issue of limitation, it was submitted for the plaintiff that the learned JC had rightly arrived at her findings upon perusing the contemporaneous documentary evidence adduced by the plaintiff which established the communication, meetings and discussions between the plaintiff, the defendant and PTSB from the year 2003 until 2011. Our Findings [24] Before we proceed to consider the issues, it is pertinent to highlight the following agreed facts between the parties: (i) cost for the said project for a total length of 950 metres of road was to be borne by three parties, i.e. the plaintiff, the defendant and PTSB. (ii) PTSB to bear the cost for 375 metres while the plaintiff and the defendant to bear the cost of 575 metres. (iii) the contribution of the plaintiff was RM871,759.60; the defendant s contribution was RM871,759.60 and for PTSB, it was RM1,137,077.60; and (iv) the defendant had paid its contribution of RM871,759.60 to the plaintiff. [25] What remained therefore was the sum of RM1,137,077.60 which was PTSB s contribution which PTSB had failed to pay, which led to the plaintiff filing the instant suit against the defendant. [26] Keeping in mind the agreed facts, how then did the liability to pay the contribution of RM1,137,077.60 which undeniably was PTSB s contribution, shift to the defendant? [27] The plaintiff s position, which the learned JC accepted, may be summarized as follows: (i) the plaintiff s contract in respect of the project was with the defendant; (ii) there was no privity of contract between the plaintiff and PTSB; (iii) because the plaintiff had honoured its duty to complete the said project, the defendant must honour its obligation to ensure that PTSB s contribution is paid to the plaintiff; and (iv) it was the defendant s obligation to claim the sum of RM1,137,077.60 from PTSB and to make payment of the same to the plaintiff. [28] On the reduction of the sum of RM1,137,077.60 to RM670,000.00 agreed by the plaintiff and MALAYSIAN JUDGMENTS Page: 7 of 12
PTSB in the meeting dated 25.4.2007, the plaintiff raised the following arguments: (i) the agreement to reduce the contribution sum from RM1,137,077.60 to RM670,000.00 was null and void as PTSB has failed, refused and/or neglected to acknowledge the terms and conditions of the plaintiff s letter dated 4.5.2007; (ii) the agreement was conditional as it was never accepted by PTSB; (iii) the reduction of the contribution sum was upon the suggestion of the defendant s representative; (iv) the plaintiff had never waived their rights to claim the sum of RM1,137,077.60 from the defendant; and (v) there had been no novation, rescission and/or alteration in the agreement between the plaintiff and the defendant. [29] Having perused the appeal records, we were unable to agree with the defendant. The learned JC in our judgment was plainly wrong in her conclusion that the defendant was responsible to pay the plaintiff RM670,000.00. We found that her Ladyship did not sufficiently evaluate the evidence, especially the contemporaneous documentary evidence which did not lend support to the defendant s case. The error on the part of the learned JC warrants appellate intervention (see Sivalingam a/l Periasamy v Periasamy & Anor [1995] 3 MLJ 395). [30] To reiterate, there was an agreement between the plaintiff and PTSB reached in the meeting held on 25.4.2007 where PTSB was to pay the plaintiff RM670,000.00. No issue of acknowledgement by PTSB of the plaintiff s letter dated 4.5.2007 arose. PTSB s representative was present in the meeting. PTSB had agreed to pay the plaintiff and had agreed to the payment schedule. [31] Of course there was no privity of contract in so far as the project for the construction of the road itself was concerned. But there certainly was privity of contract between the plaintiff and PTSB for the payment of contribution as agreed by PTSB and the plaintiff on 25.4.2007. Whether the reduction of the contribution was upon the suggestion of the defendant s representative was neither here nor there. What matters was the plaintiff and PTSB had agreed to the sum and the payment terms. [32] In any event, from the evidence of SP1, it was PTSB who requested that the contribution sum be reduced. It cannot be denied that PTSB was bound by this agreement. And that must be the basis upon which the plaintiff issued two demands to PTSB on 10.8.2007 and 15.2.2008. But for reasons best known to the plaintiff, it chose not to file an action against PTSB to enforce its rights under the agreement reached on 25.4.2007. For the plaintiff to now contend that there was no privity of contract between the plaintiff and PTSB is therefore devoid of any merit. [33] The learned JC found that " Apabila PTSB telah gagal membuat bayaran kepada plaintif sebagaimana dipersetujui adalah menjadi tanggungjawab defendan untuk melunaskan bayaran sebanyak RM670,000.00 sebagaimana dipersetujui oleh plaintif.. In this respect, her Ladyship relied MALAYSIAN JUDGMENTS Page: 8 of 12
on the oral evidence of SP1 who testified on the plaintiff s grievances arising out of the defendant s failure to collect payment from PTSB and to make payment of the same to the plaintiff. [34] With respect, we found no evidence to support the learned JC s finding that the defendant was responsible to pay the plaintiff. There were no terms reached that the defendant was responsible to claim from PTSB and to pay the said sum to the plaintiff or that it was the defendant s obligation to ensure that PTSB pay the plaintiff. Neither was there any agreement that in the event PTSB failed to adhere to the agreed terms of payment, the defendant will be responsible to pay the plaintiff first. The agreement stipulates payment by PTSB direct to the plaintiff. Put another way, there was nothing in the contemporaneous documents which recorded further agreement on 25.4.2007 between the plaintiff, the defendant and PTSB that in the event PTSB failed to pay the said contribution to the plaintiff, then the defendant will make good PTSB s default. [35] What was apparent from the contemporaneous document was that despite the plaintiff s requests, the defendant had taken a consistent stand that it was not its obligation to collect the contribution from PTSB or to pay the plaintiff the said contribution. For example, the minutes of meeting held on 12.5.2010 read: "3.1.3 Era Baru Sdn Bhd meminta MPS supaya mendapatkan baki kos menaiktaraf Jalan Labu Lama yang sepatutnya ditanggung oleh Syarikat Panji Timur Sdn. Bhd. dan didahulukan oleh Syarikat Era Baru Sdn. Bhd. atau meminta MPS membayar kos tersebut dan kemudian menuntut kepada pihak Panji Timur Sdn. Bhd. 3.1.4. Pihak Era Baru Sdn Bhd turut mencadangkan supaya pihak Majlis membenarkan jumlah hutang tersebut dikontra dengan cukai taksiran pihak Era Baru Sdn Bhd pada masa akan datang. Namun pihak Majlis tidak bersetuju dengan cadangan ini. 3.1.5 Pihak MPS tidak menjanjikan apa apa berhubung dengan isu bayaran seperti yang diminta oleh Syarikat Era Baru Sdn. Bhd. kerana tiada sebarang perjanjian yang dibuat dengan Syarikat Panji Timur Sdn. Bhd. berhubung perkara ini.. [36] On 22.9.2010, the defendant wrote to the plaintiff as follows: "2. Sukacita dimaklumkan pentadbiran Majlis ingin menegaskan isu yang dibangkitkan di atas telah pun dijelaskan dalam mesyuarat bersama pihak tuan pada 12 Mei 2010 bahawa pentadbiran Majlis tidak menjanjikan sebarang jaminan berhubung tuntutan bayaran baki kos pembinaan menaiktaraf Jalan Labu Lama 3. Untuk makluman pihak tuan, pihak MPS sebelum ini tidak pernah menyatakan sebarang persetujuan atau mengikat sebarang perjanjian dengan syarikat Era Baru Sdn Bhd dan syarikat Panji Timur Sdn Bhd untuk mendahulukan bayaran kos pembinaan menaiktaraf jalan tersebut. 4. Bagi mengatasi masalah ini adalah dinasihatkan supaya syarikat Era Baru Sdn Bhd dapat membuat tuntutan secara terus atau berunding dengan syarikat Panji Timur Sdn Bhd untuk menyelesaikan masalah ini.. MALAYSIAN JUDGMENTS Page: 9 of 12
[37] Again, in its letter dated 12.11.2010 to the plaintiff, the defendant maintained the same position when it said: 2. Sepertimana yang pihak tuan sedia maklum, kos pembinaan jalan tersebut akan dibahagikan dan dijelaskan sendiri oleh pihak tuan, MPS dan juga Panji Timur Sdn.Bhd. Oleh yang demikian, pihak tuan sedia maklum bahawa pihak MPS tidak bertanggungan untuk menjelaskan bayaran yang perlu dijelaskan oleh pihak Panji Timur Sdn. Bhd. tersebut. 3. Pihak MPS juga percaya bahawa pihak tuan sedia maklum bahawa kos tersebut perlu dijelaskan sendiri oleh pihak Panji Timur Sdn. Bhd. berdasarkan rundingan dan persetujuan yang dibuat oleh pihak tuan dan Panji Timur Sdn. Bhd. sepertimana yang dinyatakan di dalam dua (2) surat tuan bertarikh 4 Mei 2007 yang dialamatkan kepada MPS dan juga kepada Panji Timur Sdn Bhd 4. Berhubung dengan surat kami bertarikh 27 Oktober 2003 yang dirujuk oleh pihak tuan, perenggan tersebut secara jelas tidak menunjukkan sebarang niat oleh pihak MPS untuk menjelaskan jumlah tersebut bagi pihak Panji Timur Sdn. Bhd. Perenggan tersebut hanya meminta pihak tuan untuk mengemukakan cadangan jadual pembayaran kepada pihak MPS.. [38] In light of the above contemporaneous document, we found that the learned JC erred in holding that the defendant was responsible to the plaintiff for PTSB s contribution in the sum of RM670,000.00. It is trite that judicial reception of evidence requires that the oral evidence be critically tested against the whole of the other evidence and that it was always safer to rely on contemporaneous documentary evidence (see Tindok Besar Estate Sdn Bhd v Tinjar Co [1979] 2 MLJ 229). Had the learned JC considered the documentary evidence, her Ladyship would have concluded that there was never any agreement between the parties for the defendant to pay the plaintiff the sum that was to be paid by PTSB. [39] On limitation, the learned JC found that the plaintiff s claim was not statute barred under section 6(1) of the Limitation Act on the ground that there were discussions and negotiations between the parties from 2003 right until 2011. [40] Under section 6(1) of the Limitation Act, the plaintiff had six (6) years to file its claim from the date on which the cause of action accrued. The plaintiff admitted that the cause of action arose in year 2004 but argued that because there had been on going communications between the plaintiff and the defendant via correspondences, meetings and discussions since the year 2003 until 2011, the plaintiff s claim was not time barred. Learned counsel for the plaintiff relied on sections 26 and 27 of the Limitation Act. [41] Section 26 of the Limitation Act provides for fresh accrual of action on acknowledgement or part payment of debt and subsection 2 reads: "(2) Where any right of action has accrued to recover any debt or other liquidated pecuniary claim, or any claim to the personal estate of a deceased person or to any share or interest therein, MALAYSIAN JUDGMENTS Page: 10 of 12
and the person liable or accountable therefor acknowledges the claim or makes any payment in respect thereof, the right shall be deemed to have accrued on and not before the date of the acknowledgment of the last payment: Provided that a payment of a part of the rent or interest due at any time shall not extend the period for claiming the remainder of the rent or interest then due, but any payment of interest shall have effect, for the purposes of this subsection only, as if it were a payment in respect of the principal debt.. [42] While section 27 states: "(1) Every such acknowledgment as is referred to in section 26 or in the proviso to section 26 of this Act shall be in writing and signed by the person making any acknowledgment. (2) Any such acknowledgment or payment as is referred to in section 26 or the proviso to section 16 of this Act may be made by the agent of the person by whom it is required to be made under that section, and shall be made to the person, or to an agent of the person, whose title or claim is being acknowledged or, as the case may be, in respect of whose claim the payment is being made.. [43] With respect, we found that sections 26 and 27 were not applicable to the instant case as there was no acknowledgment by the defendant of the plaintiff s claim nor was there any evidence of any part payment made by the defendant towards the said contribution. [44] Indeed, as can be seen from the grounds of judgment of the learned JC, there was no finding of any acknowledgment or part payment by the defendant of the plaintiff s claim. What was found by the learned JC and likewise, what was submitted before us by the plaintiff, was that there were communications, meetings and discussions. Communications, meetings and discussions do not constitute sufficient acknowledgment of debt under section 26 of the Limitation Act (see Yee Weng Kai v Yam Kong Seng & Anor [2013] 2 MLJ 575; Lay Hong Food Corporation Sdn Bhd & Anor v Tiong Nam Logistics Solutions Sdn Bhd [2017] MLRAU 1). Conclusion [45] On the totality of the evidence, we found that the defendant was not liable to pay the plaintiff the sum claimed as the contemporaneous documents show that it was the obligation of PTSB to pay the plaintiff. We were unanimous in our decision that the plaintiff had no cause of action against the defendant. Even if there was a cause of action, the plaintiff s claim was barred by limitation as we found no evidence of acknowledgment of debt by the defendant. [46] The defendant s appeal was therefore allowed and the plaintiff s appeal dismissed with costs. The order of the High Court was set aside. Dated: 22 nd June 2018 MALAYSIAN JUDGMENTS Page: 11 of 12
Signed TENGKU MAIMUN BINTI TUAN MAT Judge Court of Appeal COUNSEL For the Appellant: Dato S. Satharuban (Anne Sangeetha with him), Messrs. Satha & Co For the Respondent: V. Ganesalingam, Messrs. Ganesalingam Vijayaratnam & Aisha Jothilingan LEGISLATION REFERRED TO: Limitation Act 1953, Sections 6(1), 26, 27 Local Authority Act 1976 JUDGMENTS REFERRED TO: Lay Hong Food Corporation Sdn Bhd & Anor v Tiong Nam Logistics Solutions Sdn Bhd [2017] MLRAU 1 Sivalingam a/l Periasamy v Periasamy & Anor [1995] 3 MLJ 395 Tindok Besar Estate Sdn Bhd v Tinjar Co [1979] 2 MLJ 229 Yee Weng Kai v Yam Kong Seng & Anor [2013] 2 MLJ 575 Notice: The Promoters of Malaysian Judgments acknowledge the permission granted by the relevant official/ original source for the reproduction of the above/ attached materials. You shall not reproduce the above/ attached materials in whole or in part without the prior written consent of the Promoters and/or the original/ official source. Neither the Promoters nor the official/ original source will be liable for any loss, injury, claim, liability, or damage caused directly, indirectly or incidentally to errors in or omissions from the above/ attached materials. The Promoters and the official/ original source also disclaim and exclude all liabilities in respect of anything done or omitted to be done in reliance upon the whole or any part of the above/attached materials. The access to, and the use of, Malaysian Judgments and contents herein are subject to the Terms of Use. MALAYSIAN JUDGMENTS Page: 12 of 12