[2011] 1 LNS 1197 Legal Network Series

DALAM MAHKAMAH TINGGI MALAYA DI KUALA LUMPUR

(BAHAGIAN DAGANG)

[GUAMAN NO: D-22-1198-2009]

ANTARA

AMFINANCE BERHAD (No Syarikat: 8515-D)

[dahulunya dikenali sebagai MBf Finance Berhad
yang mengambil alih kesemua perniagaan, aset-
aset dan tanggungan Arab Malaysian Finance
Berhad (5493-X)] ... PLAINTIF

DAN

1. REINPLAS (M) SDN BHD (No Syarikat: 181910-P)

2. YONG KUM WAH (No K/P: 1165101) ... DEFENDAN-
3. LEE KEE MEOW (No K/P: 0684729) DEFENDAN

HIRE PURCHASE: Breach of agreement - Claim for sum agreed under

agreement - Failure of 1 st defendant/Hirer to pay agreed monthly
installments - Whether a breach entitling plaintiff to terminate agreement
- Whether consent to 1 st defendant's possession withdrawn with said breach
- Theft of machine - Whether theft of plaintiff's and not 1 st defendant's
machine - Whether plaintiff should have mitigated by taking repossession
of said machine and reselling it - Whether plaintiff only entitled to
balance outstanding up to when it was notified of the theft

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[Plaintiff’s claim allowed for the outstanding sum of RM393,291.00

together with insurance premium sum of RM6,370.00 together with
interest at 1.16% per month calculated from 1.8.1998 to 8.6.2001; and
at 4% from the date of judgment to the date of realization and costs.]

Case(s) referred to:

Cempaka Finance Bhd v. Ho Lai Ying & Anor [2006] 3 CLJ 544 (refd)

Credit Corp (M) Bhd v. Bulan Sabit Sdn Bhd & Ors [1989] 1 CLJ (Rep)
444 (refd)

Dato Yap Peng Eng & Ors v. Public Bank Bhd & Ors [1997] 4 CLJ 115
(refd)

Gimstern Corp (M) Sdn Bhd & Anor v. Global Insurance Co Sdn Bhd
[1987] CLJ (Rep) 102 (foll)

Guan Aik Moh (KL) Sdn Bhd & Anor v. Selangor Properties Bhd [2007] 3
CLJ 695 (refd)

Kin Nam Development Sdn Bhd v. Khau Daw Yau [1984] 1 CLJ (Rep) 181
(refd)

Leong Weng Choon v. Consolidated Leasing (M) Sdn Bhd [1998] 3 CLJ
619 (refd)

Moorgate Mercantile Co. Ltd v. Finch and Read [1962] 3 WLR 110 (refd)

OCBC Bank (Malaysia) Bhd & Anor v. Sin Lee Meng Farm Bhd & Ors
[2002] 7 CLJ 433 (dist)

Yee Seng Plantations Sdn Bhd v. Kerajaan Negeri Terengganu & Ors
[2000] 3 CLJ 666 (refd)

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Legislation referred to:

Contracts Act 1950, s. 57

Hire Purchase Act 1967, ss. 16, 22

Limitation Act 1953, s. 6

Rules of the High Court 1980, O. 42 r. 12

GROUNDS OF DECISION

The Facts

[1] The Plaintiff entered into a hire-purchase agreement with the 1 s t

Defendant on 31.7.1997 [the said agreement]. By the said agreement,

the Plaintiff as owner, agreed to let and the 1 s t Defendant agreed to hire
one (1) unit twin discharge dry mix concrete batching plant Model Mega

3 with a capacity of approximately 90 M 3/hour [the said machine].

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[2] Pursuant to the said agreement, the 1 s t Defendant inter alia agreed
to pay the Plaintiff 48 monthly installments of RM10,269.00 per month on
or before the 1 st of each month with effect from 1.9.1997; with the final
installment being a sum of RM10,240.20. The 2 nd and 3 rd Defendants,
jointly and severally agreed to indemnify the Plaintiff against any loss or
damage “whatsoever resulting or arising and of any breach or non
performance by the” 1 st Defendant of its obligations and duties under the
said agreement.

[3] The 1 s t Defendant defaulted on its monthly installments. So, on

17.3.1998, the Plaintiff issued a Notice of Intention to Repossess on the
1 s t Defendant. The 1 s t Defendant then continued to make monthly
payments; its last payment being on 31.7.1998 where it paid a sum of
RM7,200.00.

[4] Miss Shirley Ong Gek Lian [PW2], Assistant Manager of the
Plaintiff bank was the Plaintiffs principal witness. On 19.8.1999,
according to PW2, the Plaintiff caused its solicitors to issue a “Letter of
Demand cum Recall to demand for the payment of arrears and accruing
interest and also to recall the whole outstanding amount under the said
Hire Purchase Agreement”. When that failed to elicit any payment, on
27.10.1999, the Plaintiff filed Civil Action No: D3-22-2886-1999 in the
High Court in Kuala Lumpur against only the 1 s t Defendant seeking
recovery of the sums due together with interest. I shall refer to those
legal proceedings as the “First Suit”. The First Suit was suspended to
allow the parties to negotiate a settlement of five accounts that the 1 s t

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Defendant held with the Plaintiff, including the account relating to the
present claim.

[5] On 29.5.2001, according to Mr. Yong Kum Wah [DW1], the 2 n d

Defendant who is a director of the 1 s t Defendant; one of its staff by the
name of Rajan a/l Thakaley discovered the said machine missing from its
yard or construction site at the Meda Industrial Park at Sri Damansara.
Rajan lodged a police report on 6.6.2001. 2 days later, on 8.6.2001, the
1 s t Defendant wrote to the Plaintiff about the theft of the said machine.
The 1 st Defendant then filed a claim with the insurers, QBE MBf Insurans
Berhad. This led to a further suspension of the legal proceedings in the
First Suit. This was to afford the insurers an opportunity to investigate
the theft and respond to the 1 s t Defendant’s claim with the insurers. The
insurers ultimately rejected the claim.

[6] Meanwhile, the 1 s t Defendant continued to make repayments to the

Plaintiff as negotiated. On 22.10.2001, the Plaintiff discontinued the First
Suit. According to Mr. Lee Wan Heng [PW1], the Plaintiffs officer who
acknowledged the 1 s t Defendant’s proposal to settle, by 30.9.2003, the
1 st Defendant had fully settled three of its five accounts with the Plaintiff.

[7] However, the 1 s t Defendant failed to settle the remaining two

accounts, including that pertaining to the present claim. On 27.5.2004,
the Plaintiffs solicitors issued a Notice of Termination wherein the
Defendants were required to settle the outstanding sum of
R M644 ,397 .56 as a t 18 .5 .2004 toge the r with int ere st at the rat e o f
13.92% per annum on the sum of RM393,291.00 with effect from

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19.5.2004 till the date of full settlement. A fresh action, the present action
was then initiated to claim the outstanding sum due under the said
agreement.

[8] The Defendants disputed liability. Amongst their Defences, the

Defendants alleged that the said agreement was invalid as they had
signed in blank at the material time. The Defendants also contended
that the said agreement was a money lending transaction and was thus
unenforceable. The Defendants further argued that the Plaintiff ought to
have repossessed the said machine after issuing the Notice of Intention
to Re-possess on 17.3.1998; that Defendants cannot be liable for the
delay in repossessing the said machine which led to the theft of the said
machine. The imposition and calculation of interest was also challenged
together with a plea of limitation, that the present claim is time-barred
under section 6 of the Limitation Act 1953.

Findings of the Court

[9] Dealing first with the matter of limitation, I am of the opinion that
the claim is not time-barred. In this case, the right of action arises not
from the date when the payment ought to have been made but from the
date of last payment. That was on 31.7.1998 as admitted by DW1 where
he made a payment of a sum of RM7,200.00. The present claim was
filed on 30.6.2004, about one month before limitation would have set in.
The present claim in fact bears the filing details of S2-22-988-2004.
However, the claim was transferred from the Civil Division of the High

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Court to the Commercial Division some time in 2009 and now bears the
suit number of D22-1198-2009. The claim is therefore not time-barred.

[10] Moving on to the matter of signing of the relevant forms in blank.

From the submissions made, I believe this was not seriously pursued. In
any event, there is no basis for such argument. The 2 n d Defendant
testifying on behalf of the Defendants quite happily signed the form
which later formed the said agreement. He candidly told the Court that
the form had been filled in with particulars at the time of signing. This
argument is therefore also rejected.

[11] The next argument advanced concerned the non-compliance of

section 22 of Act 212. The guarantors contended that the indemnity was
not signed or executed in the presence of a Magistrate, Commissioner
for Oaths or a Notary Public in which case, section 22 provided that such
agreements are then void. My first response is that the Plaintiff is right in
inviting this Court to reject this issue since it was not pleaded. This is
trite law as can be seen in the Supreme Court decision in Gimstern
Corp (M) Sdn Bhd & Anor v. Global Insurance Co Sdn Bhd [1987]
CLJ (Rep) 102. In any case, there is a simple answer to this. The said
agreement is not subject to the application of the Hire Purchase Act 1967
[Act 212] because the said machine does not fall within the list of goods
in Schedule 1. Subsection 1(2) of Act 212 specifically provides that the
Act applies only in respect of hire-purchase agreements relating to the
goods specified in the First Schedule. This argument is therefore without
merit and must also be disregarded.

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[12] The main argument concerns the matter of the theft of the said
machine. It is the submission of Mr. N. Nathan, learned counsel for the
Defendant that the Plaintiff had a duty to mitigate upon the breach of the
Defendants. That duty included the responsibility and the task of
physically re-possessing the said machine the moment the default
occurred. From the facts, it was argued that the Plaintiff had ample time
to repossess and resell the said machine. In fact, since the Defendant’s
last payment in July 1998. When it failed to do so and when it was
stolen, the Plaintiff had only itself to blame. It was further argued that the
obligation to repossess the said machine and resell was mandatory
under section 16 of Act 212. In the event the Defendants were found
liable to pay, the Defendants contended that such obligation must only
be till the date of theft, that is, on 29.5.2001 and not the continuing loss
as claimed.

[13] It was the submission of Encik Azman Abdullah, learned counsel

for the Plaintiff that the Plaintiff was not obliged to take physical
possession of the said machine when the Defendants defaulted in the
repayments. He argued that clause 5 mandated the Defendants and not
the Plaintiff with the obligation to return the said machine with costs and
expenses to be borne by the Defendants. He relied on the decision in
OCBC Bank (Malaysia) Bhd & Anor v. Sin Lee Meng Farm Bhd & Ors
[2002] 7 CLJ 433.

[14] With respect, I do not find the decision in OCBC Bank (Malaysia)
Bhd & Anor v. Sin Lee Meng Farm Bhd & Ors supportive of the
contention by the Plaintiff that it was not obliged to retake possession of

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the said machine. The circumstances there were vastly different from
those presented here. Of significance is the fact that there was no
repossession exercised by the plaintiff in that case, including an issue of
a notice to repossess. Also, one of the principal arguments taken
concerned the value secured from the resale of the hired goods in
question. Again, this did not happen in the instant case as the said
machine was stolen. So, when his lordship said that he “accepted” the
plaintiffs reply on its efforts at repossession, it must be understood in the
particular facts and circumstances of that case.

[15] Both counsel examined clause 5 of the said agreement which

provides for the rights and obligations of the respective parties in the
event of breach and it is proper that this clause is properly examined and
understood. The operative terms of clause 5 reads as follow:

“If the hirer shall:

(a) make default in punctually paying the initial payment or any of the hire
rentals or any other sums payable under this Agreement (whether
demanded or not), or

(b) commit any act of bankruptcy ...

(c) have any execution or distress levied ...

(d) fail to observe and perform any of the terms conditions and stipulations on
his part herein contained or

(e) do any act or thing which in the Owner’s opinion may prejudice or
jeopardize its rights of ownership of the goods or

(f) have been convicted by any competent court of a criminal offence

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then it shall be lawful for the Owner (but without prejudice to the Owner’s claim
for arrears of hire or damages for breach of Agreement and without
discharging any liability of the Hirer and without discharging any liability of the
Hirer to the Owner) without notice to terminate the hiring or by written notice
sent (by post or otherwise) to or left at the Hirer’s last known address forthwith
to determine this hiring, and the Owner’s consent to the Hirer’s possession of
the said goods shall be deemed to be withdrawn and the Hirer shall forthwith
at the Hirer’s expense deliver up the said goods to the Owner and the Owner
and its servants or agents shall be entitled without any notice to enter upon
any premises where the said goods may be and seize and take possession
thereof and to recover all charges costs and expenses incurred in connection
therewith.”

[16] This is how I read clause 5 together with the other provisions in the
said agreement. Clause 5 spells the rights and obligations of parties in
the event of a default on the part of the 1 s t Defendant. The 1 s t Defendant
can be in default in any one of those circumstances set out from clause
5(a) to (f). When that happens, the Plaintiff has the right not only to a
claim for arrears as damages but also the right to terminate the said
agreement. What clause 5 gives to the Plaintiff is the right to terminate
the agreement without the need to notify the 1 s t Defendant. It also gives
the Plaintiff the alternative right to terminate by sending a written notice
to the 1 s t Defendant’s last known address. Now, what clause 5 goes on
to provide is that with this termination, the Plaintiff’s consent to the 1 s t
Defendant’s possession to the said machine is deemed withdrawn.
Clause 1 of the said agreement has already provided that the property in
the said machine always resided in the Plaintiff. Since the Plaintiff has
withdrawn its consent to the 1 s t Defendant’s possession of the said
machine, the 1 s t Defendant is required to deliver up possession of the

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said machine to the Plaintiff. Otherwise, the 1 s t Defendant may be

accused of the tort of conversion - see Moorgate Mercantile Co. Ltd v.
Finch and Read [1962] 3 WLR 110.

[17] But, clause 5 does not end there. It also gives the Plaintiff a right
to enter the 1 s t Defendant’s premises where the said machine is and to
take possession of the machine. The Plaintiff can do so without notice to
the 1 s t Defendant. The Plaintiff is also entitled to recover the charges,
costs and expenses related with this repossession of the said machine.
Logically, this must be where the 1 st Defendant either does not deliver up
the said machine to the Plaintiff or, where the Plaintiff itself wants to take
repossession without waiting for the 1 st Defendant to do so. The problem
is where the Plaintiff chooses not to do.

[18] Putting all that into the factual context, the failure of the 1 st
Defendant to pay the agreed monthly installments is clearly one of the
breaches identified in clause 5. That is irrefutable. Aside from its right to
damages which the Plaintiff enforced through the collection of monthly
repayments the last of which was on 31.7.1998, the Plaintiff had the right
to terminate the said agreement. So, when the Plaintiff issued the Notice
of Intention to Re-possess on 17.3.1998, the Plaintiff had implicitly and
effectively terminated the Agreement and was now notifying the 1 st
Defendant of its intention to repossess since that right to repossess only
arises when the Agreement has been terminated and not before. As
discussed earlier, Clause 5 clearly provides the Plaintiff with the right to
terminate without notice. The Plaintiff’s termination is also reflected in

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the filing of the First Suit. That initiation of legal process cannot mean
anything else but the termination of the said agreement.

[19] The subsequent negotiations and settlement reached between the

parties has no impact whatsoever on this position. From PW1’s
evidence, it is apparent that although the parties had set about
negotiating on five accounts that the Defendants had with the Plaintiff,
there was only resolution and settlement in respect of three such
accounts. The present account is not one of the three.

[20] Bearing in mind that the property in the said machine always
resided in the Plaintiff, and that consent of the 1 s t Defendant’s
possession had been withdrawn with the 1 s t Defendant’s breach; the
Plaintiff ought to have taken steps towards physical repossession of the
said machine when the 1 s t Defendant failed or did not deliver up the said
machine. Otherwise, it does not make any sense to provide for such
right and still insist that the obligation is with the 1 st Defendant to deliver
up the said machine. In Moorgate Mercantile Co. Ltd v. Finch and
Read [1962] 3 WLR 110, the English Court of Appeal opined that where
a breach of any term or condition entitled the owners of the vehicle in
question to immediately recover possession of that vehicle, a claim for
conversion may in fact be initiated for continued possession of the
vehicle in question. Hence, when the theft of the said machine occurred
on 29.5.2001, it was theft of the Plaintiff’s said machine and not that of
the Hirer, the 1 s t Defendant.

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[21] Related to this is the issue of the obligation to mitigate. This duty
arises from the time of breach by the 1 s t Defendant - Credit Corp (M)
Bhd v. Bulan Sabit Sdn Bhd & Ors [1989] 1 CLJ (Rep) 444. Here, the
Plaintiff ought to have mitigated by taking repossession of the said
machine when the 1 s t Defendant failed to do so and then reselling it.
Ordinarily, the Plaintiff would have been entitled to claim for the balance
outstanding under the said agreement less the value of the said machine
at the time when it was returned to the Plaintiff. This can be seen from
the Court of Appeal’s decision in Leong Weng Choon v. Consolidated
Leasing (M) Sdn Bhd [1998] 3 CLJ 619. However, that value is
unavailable as the said machine was never returned or repossessed.
Since the Plaintiff failed to mitigate its loss; I am of the view that the
Plaintiff is only entitled to the balance outstanding up to when the Plaintiff
was notified of the theft, that is on 8.6.2001.

[22] Apropos the issue of frustration and the operation of section 57 of

the Contracts Act in the context of theft of the said machine. Section
57(2) of the Contracts Act 1950 provides that:

(2) A contract to do an act which, after the contract is made,

becomes impossible, or by reason of some event which the
promisor could not prevent, unlawful, becomes void when the
act becomes impossible or unlawful.

[23] The law of frustration concerns supervening events that frustrates

a contract, either in making it impossible for performance or
enforcement; or because of a supervening illegality. In either case, the
ev ent is unfo res een , un expe cted or “ u ncont e m pl ated” and the re is no

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provision in the contract for such an event. When such events occur, the
contract is brought to an end and the parties are discharged from their
contractual obligations. These principles are extensively discussed in
the Federal Court decision in Kin Nam Development Sdn Bhd v. Khau
Daw Yau [1984] 1 CLJ (Rep) 181 and the Court of Appeal’s decisions in
Guan Aik Moh (KL) Sdn Bhd & Anor v. Selangor Properties Bhd
[2007] 3 CLJ 695, Yee Seng Plantations Sdn Bhd v. Kerajaan Negeri
Terengganu & Ors [2000] 3 CLJ 666 and Dato Yap Peng Eng & Ors v.
Public Bank Bhd & Ors [1997] 4 CLJ 115. In all these cases which
examined and applied the English cases on the same point, it will be
seen that there is no frustration where there is fault involved or where it
is self-induced.

[24] The facts and the decision of the Court of Appeal in Guan Aik Moh
(KL) Sdn Bhd & Anor v. Selangor Properties Bhd [2007] 3 CLJ 695
are actually most insightful. Like the Court of Appeal in that decision,
similarly I have spent some anxious moments considering the application
of the doctrine of frustration to the facts of this case. But, after careful
consideration, I find that the principle actually has no application in the
facts of this case. This is because the 1 s t Defendant was already in
default when it did not keep up with the agreed monthly repayments
when the theft occurred. More importantly, the theft of the said machine
did not occasion the default in repayments by the Defendant. The
breach had already occurred and the Plaintiff had terminated the said
agreement for the reasons earlier discussed. Hence, the authorities
cited need not be addressed. The doctrine of frustration is therefore
irrelevant for consideration and determination.

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[25] In the matter of quantum, the complaint is not over the calculation
of the principal sum. Instead, the parties expended considerable time
and focus arguing on the imposition of interest.

[26] The issue of the interest is this. The Plaintiff’s imposition of interest
is contained in the two letters of offer dated 18.7.1997 and 23.7.1997
that preceded the said agreement. The various rates of interest are set
out in those letters. The Defendants argued that the Plaintiff was not
entitled to any interest as the second letter of offer superceded the first
letter of offer. Under the terms of the second letter of offer, there was no
mention of any interest. Hence, it was argued that no interest can be
imposed. Therefore, when the Plaintiff sought to calculate its claim and
prepare all its documentation with an inclusion of an element of interest
under the 1 st letter of offer, it was contended that all calculations as well
as the claim was in error and must be dismissed.

[27] With respect to the Defendants, I must disagree. In the first place,
the Plaintiff has not founded its claim on the letters of offer. From the
Statement of Claim, it is clear that the Plaintiff has relied on the said
agreement and not on the letters of offer which are not even pleaded. If
the parties are to rely on the letters of offer in any respect, there must be
appropriate provisions in the said agreement to that effect. There are
none. Instead, there is the said agreement and its terms. That is more
important and relevant. The letters of offer provide the factual matrix
against which that agreement is to be appreciated. As for the imposition
of interest, it must be that which is provided under the said agreement.

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In this regard, clause 2 of the said agreement expressly provides for the
payment of interest:-

“... In default of punctual payment (but without prejudice to the Owner’s

rights hereunder) the Hirer shall pay interest on any overdue hire
rentals or other payments at the rate of 1.16% per calendar month
provided always that any sums received hereunder may be
appropriated by the Owner in reimbursement of any p ayments made
by it under paras 3 (b) (e) and (g) hereof.”

[28] A Statement of Account was prepared and relied on in the course

of trial. The Defendants sought to show that there were manifest errors
in that Statement and was therefore not conclusive of the sum owed.
The errors being the wrongful imposition of interest and an alleged
discrepancy in the entry of the “Payment History” in the Statement.

[29] I have already dealt with the issue of interest. As for the
discrepancy, the allegation is this - that instead of an entry of the sum of
RM10,204.20, a sum of RM10,240.20 was entered. The difference
between the two figures is what is said to be an “excess of RM36.00”.
After having listened to the evidence of PW2, I find her explanation
entirely plausible and credible. According to her, one had to look at both
figures that were typed in, one at the top of the page, the other at the
bottom. The entry was correct at the top but not the bottom. “There was
a typo error at the bottom.” I have looked at pages 27 and 58 of Bundle
A where the figures appear and I am entirely satisfied that this was in
fact a “typo” error as explained by PW2. In the circumstances, the
Statement of Account binds the parties as to the conclusiveness of the

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indebtedness as would a certificate of indebtedness seeing that there are

no errors, manifest or otherwise. See Cempaka Finance Bhd v. Ho Lai
Ying & Anor [2006] 3 CLJ 544.

[30] Given the circumstances and my findings, I am satisfied that the

Plaintiff has proved its claim against all the Defendants. The Plaintiff is
therefore entitled to the outstanding sum of RM393,291.00 together with
the insurance premium sum of RM6,370.00 together with interest at the
rate of 1.16% per calendar month as provided under clause 2 of the said
agreement. However, in view of the facts and my findings on the matter
of repossession of the said machine, I shall only allow that interest to be
calculated from 1.8.1998 to 8.6.2001; and at the rate of 4% from the date
of judgment to the date of realization. This latter rate is the current rate
of interest awarded for a judgment debt under Order 42 rule 12 of the
Rules of the High Court 1980. The award of interest is still one within the
discretion of the Court unless there are clearly agreed provisions to the
contrary. On the facts of this case, I find compelling reasons to allow the
imposition of interest only until the date when the said machine was
reported stolen because of the conduct of the Plaintiff in not mitigating its
loss by taking repossession of the said machine and then reselling it. If
the Plaintiff had repossessed and resold the said machine, that would
have at least afforded the Defendants an opportunity of a reduction of
the sums due as would ordinarily have been the case in the law of
damages.

[31] In any case, having examined clause 2 of the said agreement;

nowhere is it stipulated that the im position of interest is until the full

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repayment of sums due or outstanding. The Schedule only refers to the

repayment of monthly sums until the “rentals” have been paid in full. The
Plaintiff is not entitled to the recovery of interest at the contractual rate
until the date of the full payment.

[32] The Court further orders costs of RM10,000.00 to the Plaintiff.

Dated: 19 AUGUST 2011

(MARY LIM THIAM SUAN)

JUDGE
HIGH COURT KUALA LUMPUR
(COMMERCIAL DIVISION)

Counsel:

For the plaintiff - Azman Abdullah; M/s KK Lim & Associates

For the defendants - N Nathan (together with Nur Siti Salwa); M/s Kumar
Jaspal Quah & Aishah

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