Claimant loses RM7mil payment after failing to produce original vouchers
The apex court said Pioneer Conglomerate Sdn Bhd had no sustainable claim against Live Capital Sdn Bhd without the two vouchers that formed the pillar of its case.
PUTRAJAYA : The Federal Court has ruled that an investment consultancy firm could retain RM7 million for services rendered in acquiring a company, as the plaintiff failed to proof that the payment had been an advance.
Chief Judge of Sabah and Sarawak Abdul Rahman Sebli, said the Court of Appeal had erred in how it dealt with disputed documentary evidence, which could lead to confusion and uncertainty.
'The Court of Appeal's written grounds of judgment bind all courts below based on the doctrine of stare decisis,' he said in his 30-page judgment delivered last week.
Justices Abu Bakar Jais and Vazeer Alam Mydin Meera also heard the appeal.
The facts of the case revealed that Pioneer Conglomerate Sdn Bhd, the plaintiff, had approached Live Capital Sdn Bhd, the defendant, for services relating to the takeover of public-listed company Ta Win Holdings Berhad.
Pioneer prepared two vouchers for two cheques — one for RM5 million dated Nov 3, 2017 and another for RM2 million 12 days later.
On May 31, 2019, Pioneer filed a civil action in the High Court against Live Capital for RM7 million, claiming that it had been given as an advance.
Witness Ngu Tieng Ung who testified for Live Capital admitted that the signature on the first voucher was his but said that the typewritten words 'Being paid as advance to Tenggara Kapital Sdn Bhd' were not there when the voucher was signed.
Tenggara Kapital was the former name of Live Capital.
Ngu also testified that a handwritten notation 'Advance to Tenggara' was not on the second voucher when he signed it.
Pioneer claimed that the two vouchers were proof that the RM7 million was paid to Live Capital as an advance. However, in its defence, Live Capital claimed the sum had been paid as a commission.
The High Court dismissed the suit as the original vouchers were not produced in court and the persons who added the notations were not called as witnesses.
The Court of Appeal, however, set aside the High Court ruling, holding that the burden of proof had shifted to Live Capital.
Delivering the apex court's unanimous decision, Rahman noted that the High Court had accepted Ngu's evidence that the notation and alterations on the two vouchers were not there when he signed them.
'This means they were added or altered by someone unknown to Ngu after he signed them,' he said, adding that the Court of Appeal should not have reversed the decision as an adverse finding of fact had been made against Pioneer.
Rahman said it was factually incorrect for the Court of Appeal to say that Pioneer had produced the originals of the two vouchers.
He also said the Court of Appeal was wrong to impose the evidential burden of proof on the defendant.
'Before any burden, legal or evidential, is shifted to Live Capital, it must be shown that Pioneer succeeded in establishing a prima facie case against the defendant,' he said.
He said Pioneer would have no sustainable claim against Live Capital without the two vouchers that formed the pillar of its case.
Rahman also said Live Capital had shown from Pioneer's ledger that the RM7 million was described as an investment in Ta Win, thereby rebutting Pioneer's contention that the money was a loan.
The bench awarded RM150,000 in costs to Live Capital, which was represented by Krishna Dallumah, Jasbeer Singh, Nur Hakimah Mohamad, Yong Yoong Hui and Aradhna Kaur.
Pioneer was represented by Gurdit Singh and Nashvinder Singh Gill.
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