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    DALAM MAHKAMAH RAYUAN MALAYSIA

    (BIDANG KUASA RAYUAN)

    RAYUAN SIVIL NO.: W-02(NCVC)(W)-975-06/2015

    ANTARA

    GERARD JUDE TIMOTHY PEREIRA (NO. K/P: 550926-71-5103) PERAYU

    DAN

    KASI A/L K.L PALANIAPPAN (NO. K/P: 581025-10-6855) RESPONDEN

    [DALAM MAHKAMAH TINGGI MALAYA DI KUALA LUMPUR

    DALAM WILAYAH PERSEKUTUAN, MALAYSIA

    WRIT SAMAN NO. 22NCVC-662-05/2012

    ANTARA

    GERARD JUDE TIMOTHY PEREIRA

    (NO. K/P: 550926-71-5103) PLAINTIF

    DAN

    KASI A/L K.L PALANIAPPAN

    (NO. K/P: 581025-10-6855) DEFENDAN]

    KORAM:

    LIM YEE LAN, JCA

    VARGHESE A/L GEORGE VARUGHESE, JCA

    IDRUS BIN HARUN, JCA

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    GROUNDS OF JUDGMENT

    Introduction

    [1]. This is the Appellants appeal against the decision of the Kuala

    Lumpur High Court dated 14.4.2015 in dismissing the Appellants

    claim against the Respondent.

    [2]. The Appellant was the Plaintiff and the Respondent was the

    Defendant at the High Court. In this judgment, we will refer to the

    parties as they were in the High Court.

    Brief Facts

    [3]. The Plaintiffs claim at the High Court was for the return of a sum

    of RM2, 670,000.00 given by him to the Defendant as personal loans.

    [4]. The Plaintiffs pleaded case was that the said sum was effected

    under various payments made through telegraphic transfers between

    the years 2008 and 2009 (hereinafter collectively referred to as

    Friendly Loan).

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    [5]. The Plaintiff sent two notices of demand to the Defendant for the

    return of the Friendly Loan, the first in September 2011 and the

    second in May 2012, but there were no replies to the said notices.

    [6]. The Defendant in his defence admitted receipt of the various

    payments but denied that it was for a Friendly Loan and the Plaintiff

    was put to strict proof thereof.

    [7]. The case went on a full trial during which the Plaintiff and the

    Defendant testified on their own behalves. No other witness was

    called by both parties.

    Decision of the High Court

    [8]. At the conclusion of the trial, the learned trial judge dismissed the

    Plaintiffs claim with costs of RM 20,000.00 on the ground that the

    Plaintiff failed to prove on a balance of probabilities that the said sum

    was for a Friendly Loan.

    [9]. Briefly the decision of the learned trial judge was premised on the

    following findings of fact and law:

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    (1) There was no documentary evidence that the payments made

    were in the nature of friendly loans except for the oral testimony

    of the Plaintiff. The Court of Appeals decision in Tan Aik Teck

    v Tang Soon Chye [2007] 6 MLJ 102, relied on by the Plaintiff,

    does not establish a general principle of law that, where the

    existence of a friendly loan was alleged, all that the party

    bearing the evidential burden needs to show is the fact of

    payment and receipt, which thereafter places the evidential

    burden on the other party to show that the payment was for

    some other purpose. Hence, it was not sufficient for the Plaintiff

    to presume the existence of a loan merely by proving the fact of

    payment by the Plaintiff and receipt by the Defendant;

    (2) The letters from the Plaintiff dated September 2011 and May

    2012 requesting for the return of the loans were

    inconsequential and cannot be evidence of a Friendly Loan,

    even though the Respondent failed to reply, since it was issued

    more than 2 years from the date the payments were made and

    were most likely made with intention of litigation. The case of

    Wong Hong Leong David v Norazman Bin Adnan [1995] 3

    MLJ 283 cited by learned counsel for the Plaintiff (Plaintiffs

    counsel) is distinguishable based on the facts;

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    (3) The Settlement Agreement that was entered into between the

    parties meticulously dealt with not only the distribution of the

    assets of the joint venture but also the apportionment of

    liabilities. Yet it did not deal with, let alone acknowledge, the

    existence of any outstanding loans from the Plaintiff to the

    Defendant arising from the payments that were the subject

    matter of the dispute.

    The Appeal

    [10]. The Plaintiff appealed against the decision of the High Court and it

    came before us for determination. During the hearing before us,

    respective counsels had filed in written submissions supplemented by

    their oral submissions. We will allude to their submissions in the

    course of this judgment.

    Decision of this Court

    [11]. At the conclusion of hearing this appeal, after having taken into

    consideration the oral and written submissions of learned counsels

    and perused the Record of Appeal, we allowed the Plaintiffs appeal

    with costs and set aside the order of the High Court.

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    [12]. The Defendant has applied for leave to appeal to the Federal

    Court against our decision. We set out the reasons for our decision in

    allowing the appeal.

    Reasons for this Courts decision

    [13]. We were keenly aware that as a general rule an appellate court

    should be slow to interfere with the findings of fact of a trial court

    unless the findings were arrived at with no or insufficient judicial

    appreciation of the evidence before it to render such findings plainly

    wrong; or the findings were the result of a misdirection by the trial

    court on the applicable law or there was a wrong application of the

    law to the facts; or the findings were of a kind which a reasonable

    court similarly circumstanced which had properly directed itself and

    asked the right questions would not have arrived at (see: China

    Airlines Ltd. v. Maltran Air Corp Sdn Bhd. & Another Appeal

    [1996] 3 CLJ (FC); Lee Ing Chin @ Lee Teck Seng & Ors v Gan

    Yook Chin & Anor [2003] 2 MLJ 97 (CA); Gan Yook Chin (P) &

    Anor v Lee Ing Chin @ Lee Teck Seng & Ors [2005] 2 MLJ 1 (FC);

    Sivalingam Periasamy & Anor v. Periasamy & Anor [1996] 4 CLJ

    5459).

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    [14]. In the present case, we were persuaded by the Plaintiffs counsel

    that the learned trial judge had committed the following errors of law

    and fact which rendered his findings plainly wrong and warranted

    appellate intervention.

    That Plaintiff failed to prove his claim on a balance of probabilities

    [15]. In dismissing the Plaintiffs claim under this ground, the learned

    trial judge held that under sections 101 and 103 of the Evidence Act

    1950, the Plaintiff bears both the legal and evidential burden of

    proving his case on a balance of probabilities.

    [16]. The learned trial judge was of the view that the Plaintiff in this case

    had failed to discharge his evidential burden of proof that the

    payments made to the Defendant were pursuant to a Friendly Loan.

    This is because apart from the receipt of the moneys by the

    Defendant and the Plaintiffs two letters of demand, there was no

    documentary evidence that the payments made were in the nature of

    loans except for the oral testimony of the Plaintiff.

    [17]. Before us, Plaintiffs counsel submitted that the learned trial judge

    erred in holding as such. It was submitted that it was not in dispute

    that there was no formal agreement between the parties describing

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    the purpose for the payments. Nevertheless, the Plaintiff had testified

    that the transfer and receipt of such monies by the Defendant was for

    the purpose of a Friendly Loan based on the verbal requests of the

    Defendant. These facts, together with the fact that the Defendant had

    never at any time denied that the payments made to him were for a

    Friendly Loan as evidenced by his non-reply to the Plaintiffs two

    notices of demand, were more than sufficient, in the circumstances of

    this case, to prove on a balance of probabilities that the payments

    were made by the Plaintiff and received by the Defendant as a

    Friendly Loan and for no other purpose.

    [18]. In support of his contention learned counsel had cited the

    decision of this Court in the case of Tan Aik Teck v Tang Soon

    Chye (supra) in which this Court, based on similar evidence as in

    the present case, had allowed the Plaintiffs claim.

    [19]. The facts in Tan Aik Teck v Tang Soon Chye which were said to

    be similar to the present case were (i) there was no formal loan

    agreement between the parties; (ii) the alleged friendly loan was

    given to the defendant via two cheques issued by the plaintiff; (iii) the

    defendant admitted that he had banked the cheques into his account;

    (iv) the plaintiff issued a notice of demand for the return of the friendly

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    loan through his solicitor two years after the issuance of the cheques ;

    (v) there was no reply by the defendant to the said notice of demand.

    [20]. It was submitted that based on those facts, this Court in Tan Aik

    Teck v Tang Soon Chye was prepared to accept that the plaintiff

    therein had adduced sufficient evidence to discharge his evidential

    burden of proof that the money advanced to the defendant through

    the two cheques was for purpose of a friendly loan.

    [21]. In holding that the plaintiff therein had proven his claim on a