LNS 2013-1-624

[2013] 1 LNS 624 Legal Network Series
IN THE HIGH COURT OF MALAYA AT KUALA LUMPUR

IN THE FEDERAL TERRITORY MALAYSIA
(CIVIL DIVISION)
[CIVIL ACTION NO: S5-22-929-2008]
BETWEEN
LOH CHIN HAU … PLAINTIFF

(I/C NO: 670518-01-5833)
AND
MANDY NGAN BIK FOONG

(PASPORT NO: 093015363) … DEFENDANT
(IN THE MAIN CLAIM)

AND BETWEEN
MANDY NGAN BIK FOONG

(PASPORT NO: 093015363) … PLAINTIFF
AND
1. LOH CHIN HAU

(I/C NO: 670518-01-5833)
2. YIP CHING KIT

(practicing under the name
and style of Messrs C. K. Yip & Co) … DEFENDANTS
(IN THE COUNTERCLAIM)
1
AGENCY: Authority of agent - Warrant of authority - Plaintiff bought

property belonging to 1st defendant from 1st defendant's purported agent -
Whether 2nd defendant was lawful agent of 1st defendant - Whether 2nd
defendant authorised to enter into the agreement for sale - If 2nd
defendant was not 1st defendant's agent, whether 2nd defendant was
authorised by 1st defendant, through her husband, Ken Chan, to agree to
sale of the property to plaintiff - Whether contemporaneous documents
and parties' conduct supported 2nd defendant's allegation that she had
been authorised by 1st defendant to enter into the agreement with plaintiff
- Whether plaintiff as a practising lawyer should have cautioned himself
as to whether 2nd defendant was authorised by 1st defendant to issue the
Letter of offer
TORT: Conspiracy - Elements of - Whether three prerequisites for tort to

exist proved by 1st defendant on the standard required by law - Whether
there was an agreement between 2nd defendant and plaintiff with the aim
of injuring 1st defendant and resulted in damage to 1st defendant -
Whether 1st defendant proved her claim against 2nd defendant and
plaintiff for conspiracy
[Plaintiff's claim dismissed with cost; 1st defendant's Counterclaim

premised on the claim that the 2nd defendant had no authority to act
on her behalf for the sale of the property allowed; 1st defendant's
claim premised on the tort of conspiracy and fraudulent acts
dismissed; 1st defendant's Counterclaim against the plaintiff and the
2nd defendant as prayed allowed with costs plus interest; as regards
the 2nd defendant, order made for damages to be assessed, if any, plus
interest, costs allowed for RM30,000.00 against the plaintiff and
RM50,000.00 against the 2nd defendant respectively.]
2
Case(s) referred to:
Saminathan v. Pappa [1980] 1 LNS 174 PC (refd)
SCK Group Bhd & Anor v. Sunny Liew Siew Pang & Anor [2010] 9 CLJ
389 (refd)
Sri Sutera Sdn Bhd v. Mohamed Abid And Another Appeal [2004] 1 CLJ
139 (foll)
Teh Eok Kee & Anor v. Tan Chiah Hock & Anor [1996] 2 CLJ 227 (foll)
Yong Tim v. Hoo Kok Chong & Anor [2005] 3 CLJ 229 (refd)
Legislation referred to:
Contracts Act 1950, ss. 26, 149 to 151, 181
Evidence Act 1950, s. 114(g)
3
GROUNDS OF JUDGMENT
INTRODUCTION
1. The Main Claim in this action was between the plaintiff, Mr. Sam
Loh Chin Hau (“the plaintiff”), an advocate and solicitor of the
High Court of Malaya and the defendant, Mandy Ngan Bik Foong
(“the 1 s t defendant”) for breach of contract of the sale and
purchase of two properties described as the 1 s t and 2 n d Floors of
Unit No. L-2-14 & Unit L-3-14, Plaza Damas, Jalan Sri Hartamas 1,
50480 Kuala Lumpur respectively ( “the said property”). In his
Writ and Statement of Claim ( “SOC”), the plaintiff who was the
purported purchaser of the said property sought from the 1 s t
defendant who was the purported vendor, among others, for a
declaration that the Letter of Offer dated 2.11.2007 ( Exhibit P1)
(“LO”) was a valid and binding contract between the plaintiff and
the 1 s t defendant, specific performance of the contract for the 1 s t
defendant to proceed with the sale and purchase agreement s of
the said property, damages, interest and costs.
2. In the Defence and Counterclaim, the 1 s t defendant cited the

plaintiff in the Main Claim as the 1 st defendant and Jenny Yip Ching
Kit, an advocate and solicitor practising under the name and style
of Messrs C.K. Yip & Co as the 2 n d defendant (“2 n d defendant”)
respectively. The 1 st defendant refuted the plaintiff’s claim of a valid
and binding contract between the 1 s t defendant and the plaintiff for
the sale and purchase of the said property. The 1 st defendant
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pleaded that at the material time, the 1 s t defendant had no intention

to sell the said property and/or had appointed or authorised the 2 nd
defendant to act as her agent or to act on her behalf and/or
authorised the 2 n d defendant to enter into a sale and purchase
transaction with the plaintiff. In her Counterclaim, the 1 st defendant
claimed that the plaintiff who was the 1 s t defendant’s tenant in
respect of the 1 s t Floor of the property ceased to make payment of
the rental from November 2007 and/or deliver vacant possession of
the said Unit at the expiry of the tenancy. The 1 s t defendant
pleaded that the plaintiff and the 2 n d defendant, the purported agent
of the 1 s t defendant, had maliciously and wrongfully conspired
among themselves with real and predominant purpose of causing
injury to 1 s t defendant to deprive the 1 s t defendant of her ownership
of the said property. As against the plaintiff, the 1 s t defendant
sought for vacant possession of the said Unit of the property that
he was renting, arrears of rental, mense profit for holding over until
date of vacant possession, interest and costs.
3. Further as against the 2 n d defendant, 1 s t defendant vehemently

denied that the 2 n d defendant, the purported agent, was acting as
her agent or on her behalf or that the 2 n d defendant was authorised
by her to enter into the sale and purchase transaction with the
plaintiff as the 1 s t defendant’s agent. The 1 s t defendant further
claimed that the 2 n d defendant had by herself acted fraudulently
and/or inequitably to the 1 s t defendant causing the 1 s t defendant to
suffer damages. The 1 s t defendant sought from the 2 n d defendant,
the purported agent an account for all sums of monies received
5
pursuant to the purported sale and purchase of the said property,

payment of the amount due to the 1 s t defendant, damages for fraud
to be assessed, general, aggravated, exemplary and punitive
damages to be assessed by this Court, interest and costs.
4. This case proceeded by way of a full hearing with two (2)

witnesses having testified for the plaintiff ( Loh Chin Hau and one
Serene Sew Yee Hui, the real property agent ), and two (2)
witnesses testified for the 1 s t defendant (Mandy Ngan Bik Fong
and her husband, Man Wai Chan ) and one (1) witness testified
for the 2 n d defendant (Yip Ching Kit of Messrs C.K. Yip & Co ).
5. After giving full consideration to the evidence, documentary as well

as testimonial, and the submissions by all learned Counsels for the
respective parties on 22.4.2013, I dismissed the Main Claim with
costs and allowed the 1 s t defendant’s Counterclaim against the
plaintiff and the 2 nd defendant with costs.
6. Aggrieved by my decisions to dismiss the Main Claim and to allow

the 1 s t defendant’s Counterclaim against the plaintiff and the 2 n d
defendant, the plaintiff appealed to the Court of Appeal against the
whole of the said decisions.
7. However, the 2 n d defendant, the purported agent who had issued

the LO and dealt with the plaintiff for the purported sale and
purchase of the said property, did not file any appeal against the
said decisions.
6
8. For ease of reference, Mr Sam Loh Chin Hau, the plaintiff in the
Main Claim and the 1 s t defendant in the Counterclaim would be
referred to as “the plaintiff”. Madam Mandy Ngan Bik Foong, the
defendant in the Main Claim and the plaintiff in the Counterclaim
would be referred to as the “ 1 s t defendant” and Madam Jenny Yip
Ching Kit, the 2 n d defendant in the Counterclaim would be referred
to as “the 2 n d defendant” respectively.
THE DOCUMENTS
9. The relevant documents referred to in the course of this trial were

as follows:
Documents Marked
i. The Pleadings Document “A”
ii. Common Bundle of Documents Document “B1
iii. Supplementary Common Bundle of

Documents Document “B2”
iv. Statement of Agreed Facts of the
Original Claim Document “C”
v. Statement of Agreed Facts of the
Counterclaim Document “D”
vi. Statement of Agreed Issues Document “E”
vii. Plaintiff’s Opening Statement Document “F”
viii. Opening Statement of the Plaintiff
in the Counterclaim Document “G”
7
ISSUES TO BE TRIED
10. Parties in the Main Claim had framed one (1) issue for this Court’s
determination. In respect of the Counterclaim, parties had agreed
to frame eight (8) issues for this Court’s determination. Both issue s
a r e a s s t a t e d i n t h e S t a t e m e n t o f A gr e e d I s s u e s ( D o c u me n t
ma r ke d a s “ E ” ) . H o w e v e r f o r e a s e o f r e f e r e n c e t h e s a m e ar e
r e p r o d u c e d w i t h s o m e s ma l l a m e n d m e n t s a s f o l l o w s :
Issue in the Main Claim
a. Whether the plaintiff bought the said property from the

lawfully appointed agent of the 1 s t defendant and/or with the
1 s t defendant’s authority/agreement to sell.
Issues in the Counterclaim
a. Whether the 1 s t defendant had appointed the 2 n d defendant

as her agent with regard to selling the property.
b. Whether the 2 n d defendant in agreeing to sell the property to

the plaintiff was doing so pursuant to the authority as an
agent of the 1 s t defendant.
c. If the 2 n d defendant was not the 1 s t defendant’s agent,

whether the 2 n d defendant had obtained the 1 s t defendant’s
consent/approval to sell the property to the plaintiff.
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d. Whether the 2nd defendant was authorised by the 1 st

defendant, through her husband, Ken Chan Man Wai to
agree to the sale of the property to the plaintiff.
e. Whether there was conspiracy/fraud between the plaintiff and

the 2 n d defendant with regard to this transaction and the
subsequent payments made thereto.
f. Whether the plaintiff was to pay the rental to the 1 st defendant

for the property pursuant to the Tenancy Agreement and if
the answer is in the affirmative whether he was in default of
RM21,903.88.
g. Whether the plaintiff was entitled to occupy the property upon

expiry of the Tenancy Agreement after the notice to quit and
deliver vacant possession was given vide the notice dated
12.6.2008, if the answer is in the negative, whether the
plaintiff is entitled to vacant possession and mense profits for
the plaintiff’s holding over from 1.6.2008 until vacant
possession is handed over.
h. Whether the 1 s t defendant is entitled to damages for fraud

and conspiracy from the plaintiff and the 2 n d defendant.
9
THE PLAINTIFF’S CASE
11. The plaintiff had been renting Unit L-2-14 which was the 1 s t Floor
of the said property from the 1 s t defendant for two years from
1.6.2006 to 31.5.2008 at the monthly rental of RM2,400.00 per
month. This Unit was occupied by the plaintiff for his legal practise.
Around 2007, the plaintiff realized that it was not practical to rent
the said property for his legal practise and he was looking for an
office space to buy. The plaintiff found an office space at Lot No. N-
3-9 Plaza Damas and paid a deposit of RM19,000.00 for the said
Lot. On the day the plaintiff paid the deposit for Lot No. N-3-9 Plaza
Damas, one Mr. Michael, the husband of the 2 n d defendant of
Messrs C.K. Yip, an advocate and solicitor who was practising
around the same vicinity and the firm which was also responsible
for the preparation of the tenancy agreement for the Unit the
plaintiff was renting, had called the plaintiff to inquire if he was
interested to buy the property. As the plaintiff was already based
and settled at the said area, he decided to buy the said property.
12. Vide a Letter of Offer dated 2.11.2007 ( “LO”), the 2 n d defendant

who was acting on behalf of the 1 s t defendant (“the Vendor”) had
offered to sell the said property to the plaintiff at the purchase price
of RM900,000.00. Pursuant to the LO, the plaintiff was required to
pay an earnest deposit of RM18,000.00 being 2% of the total
purchase price to the 2 n d defendant and another 10% was to be
paid upon execution of the Sale and Purchase Agreements. On
the day the LO was issued by the 2 n d defendant to the plaintiff, the
10
plaintiff paid earnest deposit of RM18,000.00 plus another

RM50,000.00 as further deposit by way of two cheques to the 2 nd
defendant (“page 80 and 81 of B1”). Pursuant to a letter dated
8.11.2007 (“Exhibit P2 at page 82 of B1” ) and after the cheques
of RM18,000.00 and RM50,000.00 respectively paid by the plaintif f
had been cleared, the plaintiff’s solicitor had written to the 2 n d
defendant requesting for two (2) copies of the Principal Sale and
Purchase Agreement s executed by the 1 s t defendant to be
furnished to the said solicitor for the purpose of the preparation of
the draft agreements for the Sale and Purchase of the said
property.
13. The 2 nd defendant responded to the said letter vide her letter dated
13.11.2007 whereby the relevant pages of the document sought by
the plaintiff’s solicitor (“IDD 3 at page 83 of B1”) were sent to the
said solicitor. On 20.11.2007 the plaintiff’s solicitor wrote to the 2 nd
defendant to reconfirm if the purchase price of the said property
was RM900,000.00. In the same letter, the said solicitor had
requested for the Tenancy Agreement to enable the said solicitor to
proceed with the Deed of Novation. On 23.11.2007 the purported
draft of the Sale and Purchase Agreement to be executed by the
1 s t defendant and the plaintiff was sent to the 2 n d defendant for her
further action (“P4 at page 84 & 85 of B1”). As there was no reply
from the 2 nd defendant, a reminder was sent by the plaintiff’s
solicitor to the 2 nd defendant vide their letter dated 5.12.2007
(“Exhibit P6 at page 119 of B1”). On 10.12.2007 and 11.12.2007
respectively, the 2 n d defendant emailed her comments on the draft
11
Sale and Purchase Agreement sent earlier. Subsequent to that,

there were emails exchanges between the plaintiff’s solicitor and
the 2 n d defendant to finalise the terms and conditions in the
proposed Sale and Purchase Agreement to be signed by the 1 s t
defendant and the plaintiff. The copies of the thread of the emails
could be seen at pages 120 to 123 of B1 ( “Exhibit P7”).
14. The plaintiff who was under the impression that the Sale and
Purchase Agreements in respect of the said property would
materialize as planned then proceeded to seek financial assistance
from OCBC to finance the purchase of the said property. In view of
this purchase, the plaintiff had also abandoned his plan to
purchase Lot No. N-3-9 Plaza Damas for which a deposit of
RM19,000.00 had been paid to the vendor, Portfolio Asia. This had
caused 50% of the deposit to the vendor, Portfolio Asia for Lot No .
N-3-9 Plaza Damas to be forfeited ( “page 129 to 131 of
B1”-“P8”). This fact was confirmed by Serene Sew Yee Hui, the
Property agent who testified as the plaintiff’s witness ( see WS-
PW2).
15. Towards the later part of December, the 1 s t defendant and her
husband, Ken Chan accompanied by her Financier’s agent, Irene
Lee had come to see the plaintiff at his office to inquire from the
plaintiff about the purported sale of the property. At the time the 1 s t
defendant reached the plaintiff’s office, the plaintiff had not yet
arrived. Upon inquiry, the plaintiff’s staff had informed the 1 s t
defendant that the plaintiff had paid the deposit amounting to
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RM68,000.00 for the property and was waiting for the execution of
the Sale and Purchase Agreements. Some correspondences
between the plaintiff’s solicitor and the 2 n d defendant were also
shown to them. The 1 s t defendant clai med that she had not
received the RM68,000.00 deposit paid by the plaintiff. Neither had
the 1 s t defendant appointed and/or authorised the 2 n d defendant to
sell the property and/or negotiated the terms of the Sale and
Purchase Agreement s with the plaintiff.
16. According to the plaintiff, as he was dealing with the 2 n d defendant

who is also a legal practitioner, he trusted the 2 n d defendant and
had not doubted the 2 n d defendant’s authority to act on behalf of
the 1 s t defendant. The plaintiff assumed that the 2 n d defendant was
vested with the authority to act and had not questioned the 2 n d
defendant’s authority to act on behalf of the 1 s t defendant and/or
inquired from the 2 n d defendant if she had been authorised by the
1 s t defendant to proceed with the sale as well as the documentation
for the sale of the property. The plaintiff then confirmed what was
related to him by the 1 s t defendant during the said meeting in order
to safeguard his interest and/or to be on the safer side should he
decide to pursue legal remedy later on ( see “page 12 and 13 of
B1”).
17. On 1.1.2008 the plaintiff’s solicitor had received a letter from the
2 n d defendant informing him the 1 s t defendant was no longer
interested in selling the said property and the 2 n d defendant was
returning the deposit of RM68,000.00 that was paid earlier. The
13
said letter by the 2 n d defendant was dated 26.12.2007 but was sent
to the plaintiff’s solicitor only on 1.1.2008 (see “page 124-125 of
B1”). The plaintiff then engaged Messrs Sng & Co to demand that
1 s t defendant proceed with the sale of the said property ( see “page
145-146 of B1”).
18. As regards the 1 s t defendant’s Counterclaim, the plaintiff denied of

any involvement in any wrongful or malicious conspiracy with the
aim to cause injury to the 1 s t defendant as pleaded by the 1 s t
defendant in her Counterclaim. The plaintiff had been dealing with
the 2 n d defendant pertaining to the tenancy agreement in respect of
the said property and assumed that the 2 n d defendant was vested
with the authority to act on behalf of the 1 s t defendant in the
manner that was done in this case. As a fellow legal practitioner,
the plaintiff trusted the 2 n d defendant and did not doubt the 2 n d
defendant’s authority as that was the matter between the 1 s t
defendant and the 2 n d defendant. The plaintiff admitted he had paid
RM68,000.00 to 2 n d defendant as deposit.
19. The plaintiff claimed that he was entitled to possession of the said
property and if the Sale and Purchase Agreements had been
executed, the issue of rental and mense profit would not have
arisen. As the 1 s t defendant had breached the contract, the plaintiff
sought from the 1 s t defendant the prayers as stated in paragraph
26 of his SOC to be allowed and for the 1 s t defendant’s
Counterclaim to be dismissed with costs.
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THE 1 st DEFENDANT’S CASE
20. The 1 st defendant who is a British citizen holding a United Kingdom

Passport No. 093015363, is the beneficial owner of the said
property which she had purchased from the developer, Malaysian
Land Properties sometime in 2004. The 1 s t defendant’s husband
one Man Wai Chan @ Ken Chan is also a British Citizen holding a
United Kingdom Passport No. 099198681 has the 1 s t defendant’s
full approval and consent to act and represent the 1 s t defendant in
matters pertaining to the 1 s t defendant’s properties or joint
properties. Both the 1 s t defendant and Ken Chan were based in the
United Kingdom.
21. The 1 s t defendant had rented Unit L-2-14 which was the 1 st Floor of
the property to the plaintiff for the period of two (2) years
commencing from 1.6.2006 to 31.5.2008 at the monthly rental of
RM2,400.00 per month (see “page 1 to 10 of B1” ). The said Unit
was occupied by the plaintiff for the purpose of his legal practise.
The Tenancy Agreement in respect of this Unit was prepared by
the 2 n d defendant.
22. The 1 s t defendant and her husband had come to know the 2 n d
defendant around December 2003 as Ken Chan had wanted to
invest in some properties in Malaysia in the 1 s t defendant’s name
as an anniversary present to her and had identified the properties
developed by Malaysia Land Properties as a potential investment.
The 2nd defendant was the lawyer at site at the time the 1 st
15
defendant and Ken Chan went to view the said properties during
the launching of the said project. After the 1 s t defendant had
identified the property that she was interested to buy, the developer
had instructed the 1 st defendant to contact the 2 nd defendant in
respect of the purchase of Unit identified as No. A-22-02A Waldorf
Tower Service Apartment. Thereafter the 1 s t defendant and Ken
Chan continued to engage the 2 nd defendant from time to time for
purposes of their other legal documentation in respect of the
property involving the said developer and/or their other legal
problems for which the 2 n d defendant was paid legal fees. That was
how both the 1 s t defendant and Ken Chan became associated with
the 2 n d defendant (see pages “21, 22 to 25, 26 to 68 of B1” ).
23. As the 1 s t defendant and Ken Chan were based in the United
Kingdom and were not resident in Malaysia, both had sought the
2 n d defendant’s assistance to assist them in the collection of rentals
in respect of the tenancies of the Plaza Damas properties including
the rental payable by the plaintiff. The 2 n d defendant was paid for
these services (see “pages 4, 11, 12, 13 to 41, 49, 51, 53, 54, 56
to 65 of B2”). The 2 n d defendant had also assisted Ken Chan to set
up a company in Malaysia for which the 2 n d defendant was also
paid. The 1 s t defendant had also admitted that it was Ken Chan
who was dealing with 2 n d defendant on her behalf relating to the
Plaza Damas properties. The 1 s t defendant had given full authority
to Ken Chan to act on her behalf and/or to act as her agent.
16
24. The 2 n d defendant had informed Ken Chan that she had found a
buyer for the said property and asked Ken Chan how much he was
willing to sell the said property for. Ken Chan had informed the 2 n d
defendant that he wished to sell the entire Plaza Damaz Property
comprising of three floors at RM1.95 million ( see “page 74 of
B1”). On 15.10.2007, as the 1 s t defendant and Ken Chan were in
Kuala Lumpur, Ken Chan had emailed the 2 n d defendant that both
Ken Chan and the 1 s t defendant wished to meet the 2 n d defendant
to resolve some tenant and rental issues. During this meeting, only
the tenant and rental issues were discussed. Neither Ken Chan nor
the 1 s t defendant had appointed the 2 n d defendant as their agent to
sell the said property on this date as claimed by the 2 n d defendant.
Both dealt with the 2 n d defendant in her capacity as an advocate
and solicitor.
25. Vide her email dated 29.10.2007, the 2 n d defendant informed Ken
Chan that she had found a purchaser for the said property who
was willing to purchase the said property at RM900,000.00 ( see
“page 76 of B1”) and Ken Chan responded to this email and
requested the 2 n d defendant to confirm the progress to him ( see
“page 76 of B1”). Vide Ken Chan’s email dated 1.11.2007, Ken
Chan had requested the 2 n d defendant to confirm with him the
progress, meaning that 2 n d defendant was to revert to Ken Chan
with the particulars of the potential purchasers and etc, ( see “page
77 of B1”). Notwithstanding the request, the 2 n d defendant did not
revert to the 1 s t defendant and/or Ken Chan to update the two of
them on the details of the purchase.
17
26. Around November 2007, the 2 n d defendant through her firm had
entered into an alleged agreement to sell the said property to the
plaintiff purportedly on behalf of the 1 st defendant. The plaintiff and
the 2 n d defendant had decided among themselves to sell the
property belonging to the 1 s t defendant including the determination
of the purchase price, the floors to be sold, the deposit to be paid,
the terms of the sale and the completion date of the agreements.
27. The 1 s t defendant through her husband Ken Chan had only wanted
to test the market and gauge the current market price for the said
property and had requested the 2 n d defendant to inquire if there
was potential buyer for the said property. However neither the 1 s t
defendant nor Ken Chan had appointed and/or authorised the 2 n d
defendant to sell the said property whether oral or written and/or
whether expressed or implied and/or had instructed the 2 n d
defendant to act as the 1 st plaintiff’s agent to initiate the sale of th e
said property to the plaintiff and/or authorised the 2 n d defendant to
prepare the legal documentation to effect the sale of the said
property to the plaintiff.
28. All the terms agreed upon between the plaintiff and the 2 n d
defendant were decided between them without any consultation
and/or with the approval or consent of the 1 s t defendant and/or Ken
Chan but these terms were determined and decided by the 2 n d
defendant and the plaintiff. The 1 s t defendant had no knowledge of
the LO, the RM18,000.00 earnest deposit, the further RM50,000.00
deposit to be paid by the purchaser and that there were exchanges
18
of correspondences and draft legal documentations between the

plaintiff and the 2 n d defendant. Both the 1 s t defendant and Ken
Chan were not informed of the purported sale of the said property
and/or were updated of the progress or steps taken by the 2 n d
defendant pertaining to the purported sale of the property. All
transactions and negotiations and exchanges were decided by the
plaintiff and the 2 n d defendant.
29. Around November 2007, Ken Chan had contacted Irene Lee to
procure additional financing over the said property. In order to
secure additional financing, Irene Lee had informed Ken Chan and
the 1 s t defendant that the said property had to be re-evaluated by a
valuer and that Irene Lee would have to make the necessary
arrangement for the valuer to visit the said property. On 16.12.2007
Irene Lee had contacted Ken Chan to inform Ken Chan that the
valuer was told by the tenant occupying the 1 s t Floor (the plaintiff)
that the said property had already been purchased by the said
tenant. The said tenant had refused to allow the valuer to enter the
said property for purposes of inspection and valuation.
30. On becoming aware of what had actually transpired, Ken Chan

then confronted the 2 n d defendant about the purported sale. As a
consequence of which there were email exchanges between the
2 n d defendant and Ken Chan regarding the matter ( see “pages 6,
8-10 of B2”). The 1 s t defendant and Ken Chan together with their
Financier’s agent, Irene Lee decided to visit the plaintiff at the 1 s t
Floor of the property on 28.12.2007 and they were provided with
19
the relevant document pertaining to the purported sale of the

property by the plaintiff’s employee as the plaintiff had not yet
arrived at the office at that time. At that point in time the plaintiff
was not at the property.
31. The LO which was sent by the 2 n d defendant dated 2.11.2007 to

the plaintiff was sent one day after Ken Chan had emailed the 2 n d
defendant requesting the 2 n d defendant to keep him informed of the
progress. Neither was a copy of the LO copied to Ken Chan or the
1 s t defendant. In the LO, there was mentioned of RM18,000.00
deposit. However nothing was mentioned about the RM50,000.00
allegedly paid by the plaintiff as deposit. During the meeting at the
plaintiff’s office, Ken Chan did inquire from the plaintiff about the
payment of RM50,000.00 by the plaintiff to the 2 n d defendant. The
plaintiff had admitted to Ken Chan that the RM50,000.00 was paid
by the plaintiff to the 2 n d defendant as “under-table” money to
secure the alleged sale to the plaintiff. Neither did the draft
prepared by the plaintiff’s solicitor mention of the RM50,000.00
deposit as claimed by the 2 n d defendant. The 2 n d defendant on the
other hand, had stated in her letter dated 26.12.2007 that the
RM50,000.00 was part 10% deposit. The plaintiff in his letter
dated 4.3.2008 had also stated that the RM50,000.00 was towards
purchase price pending full payment ( see “pages 124 and 145 of
B1”).
32. The 2 nd defendant had conspired with the plaintiff to defraud the 1 st
defendant as they decided among themselves to sell the 1 st
20
defendant’s property. All negotiations only involved the plaintiff and

the 2 n d defendant. Both decided among themselves pertaining to
the purchase price, how much deposit to be paid to the Vendor,
how to deal with the existing tenancy agreement, the “under-table
money” of RM50,000.00 and the terms of the sale and purchase
agreement. Even the exchanges of the drafts of sale and purchase
agreements were not referred to the 1 s t defendant or Ken Chan but
only involved the plaintiff’s solicitor and the 2 nd defendant. Neither
was the 1 s t defendant or Ken Chan consulted on the Novation
Agreement of the 2 n d Floor Tenancy occupied by another tenant
(see “pages 85 to 119 of B1” ).
33. Despite the fact that the earnest deposit was paid on 2.11.2007,
the 2 n d defendant had not made known to the 1 s t defendant and/or
Ken Chan until much later, which was only on 28.12.2007 when the
2 n d defendant issued payment to refund the sum of RM68,000.00
paid by the plaintiff to the 2 n d defendant (see “pages 6, 8-10 of
B2”).
34. As at 1.1.2008, the plaintiff had not paid a single cent towards the
purchase price when the same was returned by the 2 n d defendant
to him which was duly accepted by him without any objection or
reservation of his rights to pursue legal remedy. The said sum
ought to have been paid to the 2 n d defendant or the 1 s t defendant if
the plaintiff’s claim was that he has the legal right to purchase the
property and execution of the Sale and Purchase Agreement. The
21
plaintiff had also stopped paying rentals but w as still occupying the
said premises without paying a single cent to the 1 s t defendant.
35. On 4.3.2008 Messrs Sng & Co had, on behalf of the plaintiff, sent a
notice seeking for the specific performance and/or damages from
the 1 s t defendant.
36. Therefore the 1 st defendant claimed from the plaintiff for vacant
possession of the said property, arreas of rental in the sum of
RM21,903.88, double rental of RM4,800.00 per month, costs and
interest. Besides the above claim, the 1 s t defendant also claimed
for damages whether general, aggravated, exemplary or punitive
based on the tort of conspiracy. As against the 2 n d defendant, the
1 s t defendant had premised her claim based on fraud and
conspiracy. The particulars of the claim were as stated in the
Defence and Counterclaim filed herein. The 1 s t defendant also
claimed for damages whether general, aggravated, exemplary or
punitive based on fraud and conspiracy.
37. Ken Chan, the husband of the 1 st defendant testified for the 1 st
defendant. Generally and in totality, Ken Chan confirmed the 1 st
defendant’s testimony and admitted that the 1 s t defendant had
authorised him to act on matters pertaining to the properties owned
by the 1 s t defendant or their jointly owned properties. It was Ken
Chan who dealt with the 2 n d defendant on all these matters with the
1 s t defendant’s consent and approval. Ken Chan testified due to the
distance between them the communication was via emails. Based
22
on the earlier dealings with the 2 n d defendant, Ken Chan would

give instruction by way of email. During the previous dealings, the
2 n d defendant would send all correspondences between her and
the 3 r d parties by way of email for Ken Chan’s attention and would
consult Ken Chan or obtain Ken Chan’s approval on all matters.
Even the drafts of the legal documentation including amendments
to these drafts were forwarded via email to Ken Chan for his
perusal and approval. Unlike the dealing involving the said
property, all previous dealings were transparent and he would be
updated on the progress of each of the transaction by the 2 n d
defendant.
2 ND DEFENDANT’S CASE
38. The 2 n d defendant had known the 1 s t defendant and her husband,
Ken Chan since 2003. The 1 s t defendant and Ken Chan originated
from Hong Kong and had migrated to the United Kingdom since
1998 and are now citizen of the United Kingdom, where they
reside. The 2 n d defendant met the couple in December 2003 during
the couple’s visit to Malaysia to invest in real estate developed by a
company known as Malaysia Land Properties. At the material time,
the 2 n d defendant was solicitors appointed by Malaysia Land
Properties to handle the documentation in respect of the sale and
purchase of the properties developed by Malaysia Land Properties.
The 1 s t defendant was one of the purchasers of the property
developed by Malaysia Land Properties.
23
39. Since 2003 the 1 st defendant and Ken Chan had from time to time
engaged the 2 n d defendant for her legal services. The 2 n d
defendant had acted in a total of six (6) property purchases, three
(3) tenancy agreements and one (1) financing transaction for
properties in the name of the 1 s t defendant (see “pages 22, 26, 32 ,
40, 48 and 56 of B1”) . Throughout all the ten (10) transactions for
the 1 s t defendant, all instructions given to the 2 n d defendant were
through Ken Chan. Communications were mainly via email or
telephone conversation. If there were document s to be sent for
execution, the same would be couriered to Ken Chan in England at
Ken Chan’s instruction. The 1 s t defendant had not disputed the 2 n d
defendant’s authority to act for her. The three Units, Ground Floor
(L-1-14), 1 s t Floor (L-2-14) and 2 n d Floor (L-3-14) respectively
located at Plaza Damas, Sri Hartamas, Kuala Lumpur (two of
which were the said property) were all rented out to the
respective tenants and the tenancy agreements were prepared by
the 2 n d defendant. The 2 n d defendant was the point of contact for
these tenants. Both Ken Chan and the 1 s t defendant were not so
concern as to who the tenants were as long as the property were
tenanted and rentals were paid into their accounts.
40. The 2 n d defendant testified that there were numerous discussions

held between the 2 n d defendant and Ken Chan pertaining to the
sale of the property and based on his instruction, the 2 n d defendant
found the 1 s t defendant a purchaser. The evidence through the
thread of emails exhibited in Court would disclose that Ken Chan
had in fact given the mandate to the 2 nd defendant to sell the
24
property. Vide Ken Chan’s email dated 20.4.2007 (see “page 61

of B2”) with heading “My shop property” to the 2 n d defendant was
in response to the 2 n d defendant’s telephone conversation
pertaining to the said property that a buyer was keen to purchase
the property. Ken Chan wrote to ask about the potential buyer wh o
was keen to purchase the property provided that the tenants move
out. The series of email communications between Ken Chan to the
2 n d defendant would show the following:
9.10.2007 (“page 74 of B1”)

• The 2 n d defendant emailed Ken Chan to infor m Ken Chan
that she had found a buyer and inquired from Ken Chan how
much Ken Chan was willing to sell it for.
10.10.2007 (“page 74 of B1”)

• Ken Chan responded to the 2 nd defendant and told the 2 nd
defendant he was willing to part with the said property at
RM1.95 million.
15.10.2007 (“page 75 of B1”)

• Ken Chan wrote to the 2 n d defendant to fix an appointment to
meet the 2 n d defendant at the 2 n d defendant office on
16.10.2007 at 3.30 pm.
17.10.2007 (“page 11 of B2”)

• The 2 n d defendant confirmed of the meeting by saying: “It
was nice meeting up with you and your wife yesterday” .
25
[Note: The 2 nd defendant testified that at this meeting Ken Chan

discussed the sale of the said property and inquired how fast the
sale could be executed .]
29.10.2007 (“page 76 of B1”)

• The 2 n d defendant confirmed that she had found a buyer for
the 1 s t and 2 n d Floors for RM900,000.00. The 2 n d defendant
ended by saying she would revert to Ken Chan.
1.11.2007 (“page 77 of B1”)
• Ken Chan requested the 2 n d defendant to confirm the

progress.
18.12.2007 at 6.57 pm (“page 10 of B2”)

• Ken Chan wrote to the 2 nd defendant and reminded the 2 nd
defendant that the 2 nd defendant had promised to confirm all
details on or before 7.11.2007 and that there was no
confirmation coming from the 2 n d defendant even after
7.11.2007. Ken Chan had arranged for the 2 n d mortgage in
respect of the property.
18.12.2007 at 7.35 pm (“page 9 of B2”)

• Ken Chan wrote to inform the 2 n d defendant that he had
arranged for a second mortgage and requested the 2 n d
defendant to inform the tenant that a valuer would be
inspecting the property for this purpose.
26
• Ken Chan further told the 2 n d defendant that he had decided

to keep the said property as a long term investment.
19.12.2007 (“at page 8 of B2”)

• Ken Chan wrote to inform the 2 n d defendant that the 1 s t
defendant had refused to sell he said property.
20.12.2007 (“at page B2 page 6”)
• Ken Chan wrote to the 2 n d defendant that he had the intention

to sell the property. However he did not instruct the 2 n d
defendant to sell the property on the 1 s t defendant’s behalf.
The 2 n d defendant too had not reverted to hi m on the
progress by 7.11.2007 as promised. Ken Chan said the 2 n d
defendant had no authority to sell the property and/or to
receive the payment from the purchaser on his behalf. Ken
Chan was not given a copy of the draft of the sale and
purchase agreement.
41. According to the 2 n d defendant, the above thread of emails

disclosed that the 1 s t defendant had, through her husband, Ken
Chan, authorised the 2 n d defendant to sell the property on her
behalf. Based on this, the 2 n d defendant had proceeded to
negotiate with the plaintiff. This had led to the LO having been
issued to the plaintiff and the RM68,000.00 having been paid to the
2 n d defendant (see “pages 78-81 of B1”) . However the 1 s t
defendant had decided to abort the sale. Since the 1 s t defendant
had changed her mind, the 2nd defendant had by letter dated
27
26.12.2007 informed the plaintiff of the same and at the same time
had returned the pay ment of RM68,000.00 paid by the plaintiff.
Hence the sale did not go through.
42. The thread of emails produced clearly showed that the 2 n d

defendant was authorised by the 1 s t defendant through her
husband, Ken Chan, to sell the property and pursuant to that
authority the 2 n d defendant offered the said property for sale to the
plaintiff. As the 2 n d defendant had been authorised by the 1 s t
defendant through Ken Chan to offer the property for sale and to
accept the deposit paid by the plaintiff, the 1 s t defendant pleaded
case that the 2 n d defendant was acting fraudulently and/or that the
2 n d defendant had conspired with the plaintiff to cause injury to the
1 s t defendant were with no basis and ought to be rejected by the
Court. The 2 n d defendant pleaded that she is not liable for damages
claimed by the 1 s t defendant in her Counterclaim.
POINTS RAISED BY THE RESPECTIVE PARTIES IN THEIR

SUBMISSIONS
By the plaintiff
43. In his written submissions, learned Counsel for the plaintiff raised
the following arguments:
28
a. The plaintiff was not privy to any communication between the

1 s t defendant and the 2 n d defendant. The plaintiff was never
in contact with either of the 1 s t defendant or the 2 n d defendant
despite the fact that he was renting the 1 s t Floor of the said
property belonging to the 1 s t defendant. Any dealings the
plaintiff had with the 2 n d defendant was exclusively as the
agent of the 1 s t defendant.
b. As the entire tenancy agreement was concluded in the similar

fashion where the 2 n d defendant was acting on behalf of the
1 s t defendant, the plaintiff had no reason to doubt the 2 n d
defendant’s integrity and/or authority to issue the LO.
c. As both the plaintiff and the 2 n d defendant are legal

practitioners, it is not customary to demand a letter of
authority from fellow practitioner. More so in this case, th e
plaintiff had been dealing with the 2 n d defendant in respect of
the tenancy of the 1 s t Floor of the property belonging to the
1 s t defendant. The offer for the sale of the property was made
by the 2 n d defendant holding herself to be the agent and/or
person lawfully appointed and/or authorised by the 1 s t
defendant to offer the proper for sale to the plaintiff.
d. The offer by the 1 s t defendant through her agent had been

accepted and upon payment of the sum of RM68,000.00
being accepted, there existed a valid and binding contract
between the plaintiff and the 1 s t defendant.
29
e. The appointment of an agent to act on behalf of the 1 s t

defendant need not be in writing as this could be inferred
from the circumstances of the case. In this case the 2 n d
defendant had the authority to act as an agent of the 1 s t
defendant. Hence the 2 n d defendant was vested with the
authority to act on behalf of the 1 s t defendant. The 2 n d
defendant had previously acted in various transactions on
behalf of the 1 s t defendant.
f. The thread of emails exhibited in this case proved that the 1 s t

defendant had every intention to sell the property and had
authorised the 2 n d defendant to do all that was necessary to
effect the sale. The 2 n d defendant having acted under the
instruction of the 1 s t defendant had entered into a legal and
binding contract with the plaintiff. However for reason only
known to the 1 s t defendant, the 1 s t defendant had suddenly
decided to call it off.
g. The 1 s t defendant had not discharged the burden to prove her

allegation of the conspiracy against the plaintiff and the 2 n d
defendant beyond reasonable doubt. The defendant failed to
establish that there was an agreement between the plaintiff
and the 1 s t defendant with a predominant aim or purpose to
cause injury to the 1 s t defendant and that act done in
execution of the agreement had caused damage to the
defendant (see the case of SCK Group Bhd & Anor v.
Sunny Liew Siew Pang & Anor [2010] 9 CLJ 389).
30
h. The payment of RM50,000.00 by the plaintiff to the 2 n d

defendant had been accounted for and the said sum was
paid by the plaintiff after being requested by the 2 n d
defendant. RM50,000.00 had been deposited into the 2 n d
defendant’s client’s accounts. The 2 n d defendant had also
testified that she had no problem with her client’s accounts
and further she had been issued with her annual practising
certificates without any problem.
i. The plaintiff alleged that all dealings were done above board
and there was no reason for the plaintiff to conspire with the
2 n d defendant.
For the 1 st defendant
44. Learned Counsel for the 1 st defendant advanced the following

arguments:
a. The offer to sell the said property vide the LO dated

2.11.2007 was in fact made by the 2 n d defendant who was
not vested with the authority to make such offer to sell. There
was no written document to prove that the 1 s t defendant had
authorised the 2 n d defendant to act or her behalf. No
documents were tendered to prove that such an authority ha d
been granted by the 1 s t defendant to the 2 n d defendant.
31
b. The plaintiff merely trusted the 2 n d defendant and had not

called for some form of document to prove that the 2 n d
defendant had been authorised by the 1 s t defendant to offer
the property for sale. The plaintiff merely assumed that the
2 n d defendant had the authority to offer the property for sale
on behalf of the defendant.
c. The plaintiff had not sought any confirmation from the 2 nd

defendant’s husband if he had the authority to act as agent
for the 1 s t defendant to offer the property for sale. The plaintiff
merely assumed as the 2 n d defendant’s husband was from
C.K. Yip & Co which was a legal firm, and what he said was
true.
d. There were inconsistencies in the testimony of the plaintiff

and that of the 2 n d defendant with regard to who was dealing
with the plaintiff when the said property was offered for sale.
The plaintiff testified that he was dealing with Mr Michael, the
2 n d defendant’s husband. The 2 n d defendant, on the other
hand, testified that the plaintiff was dealing with her and had
indicated his intention to purchase the said property to her.
e. The 1 s t defendant and her husband testified that neither the

1 s t defendant nor her husband had authorised the 2 n d
defendant whether written or oral to act as her agent in
respect of the sale. The 2 n d defendant had testified that bot h
the 1 s t defendant and her husband had come to her office to
32
discuss the sale and had specifically authorised her to act as

their agent to sell the said property. However the 2 n d
defendant had not requested the 1 s t defendant or her
husband to give a written authority for her to act as their
agent. Neither did the 2 n d defendant confirm in writing that
vide the discussions dated 16.10.2007 the 2 n d defendant had
been appointed to act as the 1 s t defendant’s agent to sell the
said property. This was the least that she could have done to
prove that she had been appointed by the 1 s t defendant
and/or her husband to act as their agent to sell the property.
f. Based on the thread of emails adduced in Court, around the

time the 2 n d defendant alleged that the 1 s t defendant and Ken
Chan had come to her office to discuss the sale of the said
property and to authorise her to sell the said property, the
emails from Ken Chan dated 27.9.2007 showed that the
couple would be at the 2 n d defendant’s office in Kuala Lumpur
on the 16.10.2007 to discuss outstanding rentals in respect of
the tenanted property. The email exchanges between Ken
Chan and the 2 n d defendant focused on the issue of rental
and no mention was made about the purported sale of the
said property as claimed by the 2 n d defendant.
g. The 2 nd defendant kept repeating that the authority from the

defendant or Ken Chan was in the form of telephone
conversations and email communications. However the 2 n d
defendant who is an advocate and solicitor had never thought
33
it fit to confirm this authorization in writing like any reasonable

advocate would do.
h. T h e t hr e a d o f e ma i l s b e t w e e n K e n C h a n a n d t h e 2 n d
defendant between 9.10.2007 to 20.12.2007 clearly showed
that both the 1st defendant and Ken Chan had no idea that
the 2 n d defendant had issued the LO dated 2.11.2007 to the
plaintiff. Neither did the couple know that the 2 n d defendant
had already accepted the deposit of RM68,000.00 in respect
of the sale of the said property. From the evidence adduced ,
the couple came to know of the LO and the sale of the said
property partly on 28.12.2007. The rest of the facts were onl y
disclosed during the trial.
i. The 2 n d defendant’s contention that her authority to act had

come via the numerous telephone conversations and emails
could not be true as:
i. The contemporaneous documents and conduct of

parties did not support such a contention;
ii. The 2 nd mortgage intention was in September 2007;
iii. The signing of the offer and acceptance for the sale of
the said property by the 2 n d defendant and the plaintiff
on 2.11.2007. The LO was not copied to the 1 s t
defendant or Ken Chan;
34
iv. The particulars of the buyer who happened to be the 1 st

defendant’s tenant was not disclosed to the defendant
and/or Ken Chan;
v. The 2 n d defendant had failed to inform the defendant

that the deposit of RM18,000.00 and RM50,000.00 had
been paid to her;
vi. Neither was the 1 st defendant provided with all related

correspondences or emails or copies of the drafts of the
sale and purchase agreements or neither was the 1 s t
defendant involved in any of these transactions, given
that her interest was at stake here;
vii. It was also obvious from the evidence adduced that the
1 s t defendant and Ken Chan had come to know about
the sale when the same was communicated by Irene
Lee their Financier’s agent, that the valuer who had
gone to the property had been denied entry. This fact
was not disputed by the plaintiff. This proved that both
the defendant and Ken Chan had no idea that the said
property was already offered for sale by the 2 n d
defendant;
viii. The 1 st defendant and Ken Chan had seen the LO and the
documents to show payments were made to the 2 nd
defendant only dur i ng t he t i me t he coupl e vi si t ed t he
35
plaintiff’s office. This clearly showed that the 2 n d

defendant had kept the defendant and Ken Chan in the
dark pertaining to the purported sale;
ix. There were contrary evidence given in respect of the

RM50,000.00. Neither the plaintiff nor the 2 nd defendant
could reasonably explain why the sum of RM50,000.00
was paid and the reason as to why there was non-
disclosure of these monies in any of the documents
relating to the said sale. Was it under-table money? Or
was it for purpose of payment of some arrears of
rentals as claimed or was it paid by the plaintiff to the
2 nd defendant on his own free will. Both the plaintiff and
the 2 n d defendant were not able to provide any
plausible explanation regarding this mysterious
RM50,000. 00;
x. The 2 n d defendant had also made a refund of the sum

of RM68,000.00 to the plaintiff without the 1 s t
defendant’s knowledge. The 2 n d defendant confir med
that the 1 s t defendant was not notified of the refund as
she had assumed the 1 s t defendant would know as the
1 s t defendant had aborted the sale;
xi. The 2 n d defendant who is the 1 s t defendant’s lawyer

was not entitled to execute the LO on behalf of the 1 s t
defendant as in law, a person can only legally execute
36
a contract if validly appointed via an instrument

known as the Power of Attorney and there was no such
instrument created by the 1 s t defendant appointing the
2 n d defendant to act on her behalf;
xii. Section 181 of the Contracts Act 1950 provides that

“Where an agent does more than he is authorised to
do, and what he does beyond the scope of his authority
cannot be separated from what is within it, the principa l
is not bound to recognise the transaction”. Section 149
to 151 of the Contracts Act 1950 provides the 1 s t
defendant as the principal with the right of “Ratification ”.
However the defendant in this case had not exercised
this power but had disowned the acts of the 2 n d
defendant;
xiii. The contract between the briber, in this case, the

plaintiff and the 2 n d defendant was an illegal contract
and could not form a basis of claim before the Court;
xiv. The agreement in respect of the sale of the property

was not executed within fourteen (14) days from the
date of the LO and therefore the LO was not a binding
contract. The option to forfeit the earnest deposit was
not put to the 1 s t defendant. If put to the 1 s t defendant
she might exercise the option to rescind the agreement.
37
This would prevent the plaintiff from pursuing his

remedy he did in this Court;
xv. The plaintiff had accepted the refund unconditionally

and in this scenario, the plaintiff was deemed to have
accepted the termination the agreement between him
and the defendant. By accepting the refund the
agreement could not be accepted as valid because of
lack of consideration (Section 26 of the Contracts Act).
Hence the plaintiff had lost all rights to sue for specific
performance;
xvi. The plaintiff too had not shown that he was capable of
paying the purchase price should this Court grant him
the prayer for specific performance. The plaintiff must
show evidence as to access to sufficient fund and it
must not be speculative;
xvii. Even if the LO was held to be valid, the contract could

be rescinded as it was an illegal contract;
xviii. Even if, the 2 n d defendant was vested with the authority
to sell the agreement was still void or deemed
terminated as the formal sale and purchase agreement
had not complied with Item (a) of the LO which stipulat e
that the agreement had to be executed within 14 days
from the date of the LO; and
38
xix. Even if the 2 nd defendant had the authority to sell, the

agreements were still void or deemed terminated when
the 2 n d defendant had returned the monies paid
towards the purchase price on behalf of 1 s t defendant to
the plaintiff which was duly accepted by the plaintiff
unconditionally.
Submission of the 2 nd defendant on the Counterclaim
45. Learned Counsel for the 2 n d defendant advanced, amongst others,

the following arguments:
a. It is settled law that substantial weight is usually given to

contemporaneous documents as opposed to oral statements
which were not based on contemporaneous
correspondences or documentary evidence. The 2 nd
defendant had acted in a total of six (6) property purchases,
three (3) tenancy agreements and one (1) financing
transaction for property in the 1 s t defendant’s name. In
respect of all these transactions all instructions were given by
Ken Chan either by telephone conversations or email
communications. All the relevant documents would be
emailed or couriered by the 2 n d defendant to Ken Chan. The
2 n d defendant and Ken Chan had a long relationship since
the end of 2003. The first mention of the term “authority”
could be found in the email sent by Ken Chan to the 2 n d
defendant dated 20.12.2007 (see “page 6 of B2”) after
39
having been informed by the 2 n d defendant by email dated

19.12.2007 (see “page 8 of B2”) . The 1 s t defendant had
never disputed the 2 n d defendant’s “authority” to offer the
property for sale.
b. All documentations in respect of the tenanted property were

prepared by the 2 nd defendant.
c. Throughout the duration of the tenancy agreements, the 2 nd

defendant was the sole contact point of the tenants. In fact
for the tenancy in respect of the 1 s t Floor, the 1 s t defendant
and Ken Chan never dealt with the plaintiff. All dealings were
through the 2 n d defendant and there was no direct or
personal communication between the 1 s t defendant and Ken
Chan with the plaintiff.
d. From the thread of emails which were contemporaneous and

produced for this Court’s perusal, it was obvious that the 1 st
defendant had every intention to sell the said property and
had through her husband Ken Chan given the authority to the
2 n d defendant to proceed with the sale. Based on the
previous dealings, all communications were mostly done via
telephone calls and/or emails and Ken Chan had through
these telephone calls given the authority to the 2 n d defendant.
The pattern and mode the parties communicated was
conceded by the 1 s t defendant. There was no communication
via email from Ken Chan to the 2nd defendant which
40
conveyed the intention to the 2 n d defendant that the 1 s t

defendant did not want to sell the property. Neither did Ken
Chan express shock that the 2 n d defendant had proceeded to
sell the property or alleged that he had not authorised the 2 n d
defendant to sell the said property.
e. The 1 s t defendant had every intention to sell the property and

had through her husband, Ken Chan authorised the 2 n d
defendant to sell the property. The contemporaneous
documents and witnesses’ testimony were testimony to this.
The reality of the matter was that the 1 s t defendant and Ken
Chan had changed their minds after having authorised the
2 n d defendant to look for a purchaser. The evidence adduced
during the trial clearly showed that after Ken Chan and the 1 s t
defendant had obtained legal advice in the United Kingdom,
the 1 s t defendant had changed her mind and turn around to
claim that the 2 n d defendant had acted without authority
and/or the 2 n d defendant was not her lawful agent to act on
her behalf to offer the property for sale to the plaintiff.
f. The 1 s t defendant had made serious allegation against two

(2) lawyers, in that, they both had conspired with the
predominant objective to injure the 1 s t defendant and thereby
causing the 1 s t defendant to suffer damages. Despite these
serious allegations against the 2 n d defendant and the plaintiff,
the 1 s t defendant had not taken any action to lodge a police
report and/or sent any letter to the 2 nd defendant for the
41
alleged wrongful sale of the property and/or lodged any

complaints to the Legal Profession’s Disciplinary Board
pertaining to the misconduct.
g. Further the 1 s t defendant had failed to prove her claim

premised on the tort of conspiracy and fraud on the standard
required by the law. These allegations were unfounded and
nothing more than an afterthought to escape liability as a
result of changing her mind to proceed with the sale. The
standard of proof for allegations of fraud is “beyond
reasonable doubt”
h. Both the 1 s t defendant and Ken Chan had concocted the

evidence and/or the evidence adduced was an afterthought.
i. The issue of no authority to extend time had not been

pleaded.
j. Both the 1 s t defendant and Ken Chan were never concerned

with the identities of their tenants as long as the property is
tenanted and the tenants pay their monthly rentals without
fail.
k. Both the 1 s t defendant and Ken Chan were not credible

witnesses, evasive and gave contradictory testimony in
Court.
42
l. A d v e r s e i n f e r e n c e p u r s u a n t t o s e c t i o n 1 1 4( g ) o f t h e
E v i d e n c e Act 1950 ought to be drawn against the 1 s t
defendant. The 1 s t defendant testified that Ken Chan had
written an email on 1.11.2007 instructing the 2 n d defendant to
reject the offer and this email, was not produced in Court.
Despite insisting the existence of this email, the same was
not produced in Court. This was a crucial piece of evidence
to refute any claims by the 2 n d defendant that she had acted
with authority.
FINDINGS OF THE COURT
46. The central issue which is relevant pertaining to the Main Claim
and the Counterclaim centred on the issue as to whether the 2 n d
defendant herein was the lawful agent, and whether the 2 n d
defendant had been authorised to enter into the agreement with
the plaintiff to offer the said property belonging to the 1 s t defendant
for sale as was done in this case. It had been submitted by the
learned Counsel for the plaintiff that an appointment of an agent
such as in this case need not be in writing. This was the
proposition made by the Court of Appeal in the case of Sri Sutera
Sdn Bhd v. Mohamed Abid And Another Appea l [2004] 1 CLJ
139 where the Court of Appeal held that whether there existed a
principal/agent relationship could be inferred from the
circumstances of the case.
43
47. In Teh Eok Kee & Anor v. Tan Chiah Hock & Anor [1996] 2 CLJ
227 the Federal Court was of the opinion that the issue as to
whether a solicitor had actual or ostensible authority to bind his
client contractually is in fact a question of fact of each case .
48. Taking the guidance from the above two high authorities cited by
learned Counsel, the Court’s duty was to look at the factual matrix
of this case and determine if the 2 n d defendant had the authority to
act to offer the 1 s t defendant’s property for sale to the plaintiff by
way of the Letter of Offer dated 2.11.2007 (“Exhibit P1 at page 78
of B1”) and to take all actions to complete the sale of the property
to the plaintiff.
49. The 2nd defendant in h er evidence had stated that all

communications between herself and the 1 s t defendant were done
t h r o u g h h e r h u s b a n d , K e n C h a n , mo s t l y e i t h e r b y t e l e p h o n e
communications or by emails. The facts that were disclosed during
the trial which were not disputed showed that the 2 n d defendant
h a d a c t e d i n a t o t a l o f s i x ( 6 ) p r o p er t y p ur c h a s e s w h e r e t h e 1 s t
d e f e n d a n t w a s t h e p ur c h a s e r a n d 3 t h r e e t e n a n cy a gr e e me n t s ,
where the 1 s t defendant was the landlady and also a refinancin g
transaction for property in the name of the 1 s t defendant. Five (5)
transactions were made in the year 2004 and one in the year 2007 .
In respect of all these transactions, the instructions to the 2 nd
defendant were not given by the 1 s t defendant personally althoug h
all these properties were registered in her name but all directions
and instructions in fact had come from Ken Chan, the 1 st
44
defendant’s husband. The 2 nd defendant further testified that after

these telephone conversations and emails with Ken Chan, the 2 n d
defendant would follow up or carry out the instructions by sending
the relevant documents for the 1 s t defendant’s or Ken Chan’s
perusal or approval before further actions were taken by the 2 nd
defendant. There would be documentary exchanges of all
instructions that were instructed on. The 2 n d defendant admitted
there would be documentary trail that the 1 s t defendant’s instruction
through Ken Chan had been carried out by the 2 n d defendant.
These were reflected in the Notes of Proceedings dated
19.12.2007 at pages 21, 22, 23, 24, 29, 32 and 34.
50. The 2 n d defendant had also admitted that for the transaction
involving the said property there was no documentary evidence
that the 1 s t defendant and Ken Chan had given specific written
instruction to her to offer the property for sale to the plaintiff.
Neither was the 2 n d defendant instructed to act as the 1 s t
defendant’s agent for the disposal of the said property. There was
no specific document in the Bundles that were filed which proved
that the 2 n d defendant had been vested with the authority to act as
the 1 s t defendant’s agent to sell the property. What the 2 n d
defendant had was only the document at pages 74, 75, 76, and 77
of the document marked as B1 and pages 8, 9 and 10 of the
document marked as B2 and telephone communications between
the 2 n d defendant and Ken Chan which the 2 n d defendant claimed
were clear instructions to her to act as an agent of the 1 s t
defendant . T he 2 n d defendant had al so admi t t ed that she di d not
45
confirm the purported verbal instructions by Ken Chan to her in

writing.
51. A close examination of the emails below would show that neither
the 1 s t defendant nor Ken Chan had appointed the 2 n d defendant to
act on behalf of the 1 s t defendant as her agent and/or had
authorised the 2 n d defendant to take all steps to sell the said
property to the plaintiff. No matter how far one were to stretch the
meanings of the emails as stated below, these emails would give
the impression that the 1 s t defendant had through Ken Chan given
the express authority to the 2 n d defendant to deal with the property.
Email from Ken Chan to the 2 nd defendant dated 20.4.2007 with the
subject “My shop property” (at page 61 of B2) states:
Hi Jenny,
........
“Last time, you told me that one buyer want to buy my shop provided
all tenants move out. What is your suggestion.”
All the Best

Ken
On 27.9.2007 at 7.09 am (at page 24 of B2) Ken Chan wrote:
Hi Jennie,
I and Mandy will be in KL on Oct 16. I will settle the lawyer when I
go to your office. When I check my statement, I still found that the
tenant has the outstanding rental. Since the 1 st Floor is 2200.00 and
the 2 nd Floor is also 2200.00. I can not find who owe the rent. The
46
best thing is to ask the 1 st Floor tenant to pay 2201.00 from

September.
Please check the attach report and ask the 3 tenants to give you the
pay in slips. I can not expect any late rental payment.
All the best
Ken
The 2 n d defendant responded to the above email vide email dated

27.9.2007 at 9.45 am (at page 24 of B2) which says:
Dear Ken,
There is no attached report in your email. Please resend soonest for

me to check. I will see you in Oct 16
Regards
Jenny Yip
On September 27, 2007 at 10.02 am (top half of page 21 of B2)

Ken wrote:
Hi Jenny,
Attach is a report, I have not got May statement. Please go through.

The best thing is to ask your tenants to submit all the pay in slip.
All the best

Ken
47
The email from the 2 n d defendant to Ken Chan dated 27.9.2007 at

11.02 am states:
Dear Ken,
Ok. Will get ready when I see you.
Regards,
Jenny Yip
The 2 n d defendant wrote to Ken Chan vide email dated 9.10.2007

to infor m Ken Chan about someone who was interested to
purchase the said property (“at page 74 of B2”). The email reads:
Dear Ken,
“I have got a buyer for your shop lot.”

How much are you willing to sell?
Regards
Jenny Yip
Ken Chan responded to the 2 n d defendant’s email vide his email

dated 10.10.2007 (“at page 74 of B2”) which states:
“Re L-14-Plaza Damas Shop Lot at Sri Hartamas
I want to sell at 1.95 million.”
All the Best

Ken
48
On 15.10.2007 Ken Chan emailed the 2 n d defendant requesting to

meet at the 2 n d defendant’s office on 16.10.2007 (“at page 11 of
B1”) which states:
“I would like to meet you in your office 16.10.2007 at 3.30 p.m.

Please check with tenants the rental situation. We need to finalize
tomorrow.
My hotel address is as follows: Equatorial Hotel KL-Jalan Sultan

Ismail 50250 KL.
Tel: 603 21 61 777 Room number is 821
All the best

Ken
On October 17, 2007 at 9.29 am (“page 11 of B1”) the 2 n d

defendant responded by saying:
It was nice meeting up with you & your wife yesterday.

Stated herein are our bank details for your kind transfer of our bill
payments:
........
Please fax me the bank confirmation upon transfer for our record
purposes.
Thank you.
Will revert to you on the other matter.
Best Regards
Jenny Yip
49
On 29.10.2007, the 2 n d defendant emailed Ken Chan to inform Ken

Chan that she had found a buyer for the said property (at page 76
of B1). This email states:
We confirmed that we had found a Purchaser for the 1 st and 2 nd

Floor of your unit for RM900,000.00.
I will revert to you on the next stage.
Regards
Jenny Yip
On 1.11.2007, Ken Chan replied to the above email and said:
Hi Jenny,
Please confirm me the progress.
All the Best
Ken
52. A close examination of all these emails would show that the 2 nd
defendant’s reliance on these email exchanges between herself
and Ken Chan did not support her clai m that there was
authorisation from Ken Chan for her to offer the said property for
sale. There was nothing in these email s to suggest that the 2 n d
defendant was clothed with the authority to act. According to the
2 n d defendant, the words “Will revert to you on the other matter”
mentioned in her email to Ken Chan dated 29.10.2007 proved tha t
the matter pertaining to the sale of the said property had been
discussed during the latter’s visit to her office on 16.10.2007. This
50
was denied by Ken Chan who in turn had testified that he did not
and would not enter into such an agreements by phone calls only
because of the time difference between Malaysia and the UK and
the telephone quality given the times difference. A close reading of
the above quoted emails would indicate that at most the 1 s t
defendant had only indicated her intention through Ken Chan to
sell the said property. This was obvious as in his email dated
1.11.2007 from Ken Chan to the 2 n d defendant, Ken Chan had
requested the 2 n d defendant, a day before the LO was issued by
the 2 n d defendant to the plaintiff, for the 2 n d defendant to apprise
him of further details regarding the prospective sale of the said
property. The contemporaneous documents too do not support the
2 n d defendant’s contention that she was vested with the authority to
offer the said property for sale to the plaintiff.
53. In assessing the 2 n d defendant’s evidence, I took into consideration

the fact that the 2 n d defendant is a practicing lawyer who deals
mostly with conveyancing matters, the 1 st defendant is a UK citizen
and at that material time was living in the UK and out of jurisdictio n,
the said property to be disposed of is a three storey shop lot with
separate titles, the price of the said property would be quite a
substantial sum in view of its location at Sri Hartamas, the 2 n d
defendant was dealing with a seasoned businessman who himself
is dealing with real property in the UK and that it is an accepted
fact that prices between the floors are generally not the same. If it
was true as claimed by the 2 n d defendant that on 16.10.2007 Ken
Chan had in fact instructed her to sell the said property during her
51
meeting with Ken Chan on 16.10.2007, as a reasonable and

prudent lawyer the least the 2 n d defendant could have done was to
confirm whatever directions that were given to her by Ken Chan in
writing. This was not done. The 2 n d defendant must understand that
she was dealing with the property belonging to another person and
a substantial sum of money would be exchanging hands. Hence it
was only proper and prudent for the 2 n d defendant to get specific
instructions in writing before she offered the said property for sale.
54. I had also observed that the 2 n d defendant was communicating with
Ken Chan over some trivial matters and opted not to communicate
via email about more serious and important matters such as the
disposal of the said property which may involve a substantial sum
of money and the transfer of the same to another owner. Further
when both, the plaintiff and the 2 n d defendant, were busy
negotiating the prices and preparing the legal documentation to
effect the sale and purchase of the said property, both the 1 s t
defendant and Ken Chan was not informed of the progress
pertaining to the said sale. Between the period of 1.11.2007 to
18.12.2007, about 48 days from Ken Chan’s email to the 2 n d
defendant dated 1.11.2007 where the 2 n d defendant ought to have
been engaged with Ken Chan pertaining to the sale of the said
property, there was not a single e-mail sent by the 2 n d defendant to
apprise Ken Chan of the progress or to obtain instructions
pertaining to the sale of the said property. During this period, the
2 n d defendant had issued the LO which was accepted by plaintiff,
the lawyer for the plaintiff was communicating with the 2 nd
52
defendant over the related legal documentation. The Novation

Agreement in respect of the current tenancy was also taken care
of, deposits of 10% of the sale price had been paid and another
RM50,000.00 had also been paid to the 2 n d defendant. None of this
infor mati on was communicated to Ken Chan or the 1 s t defendant.
The absence of such email communi cation seeking Ken Chan’s
direction on the sale of the said property during this crucial period
when parties ought to have actively communicated with one
another to me was consistent with the fact that there were no such
instructions given to the 2 n d defendant to dispose of the said
property as clai med by the 2 n d defendant.
55. It is also important to note that unlike all earlier transactions where
Ken Chan and the 1 s t defendant were updated with the
developments of the transactions and exchanges of emails were
followed by attachments of legal documents to be perused and
approved by Ken Chan or the 1 s t defendant, both Ken Chan and
the 1 s t defendant were kept in the dark of the progress of the sale
of the said property to the plaintiff. The 2 n d defendant had given the
excuse that the transaction was handled by her lawyer one Miss
Roza as she was away and was grieving for the loss of her mother
in law. The 2 n d defendant testified that she had no knowledge of
what transpired as in her absence grieving over the loss of her
mother in law, the file was passed to her lawyer Miss Roza to
follow through with the plaintiff. In any event that was not the end of
the matter as instructions could be given to Miss Roza to
correspond with Ken Chan and/or the 1 s t defendant to keep both of
53
these people updated with regard to the progress of the

transactions. This too was not done by the 2 n d defendant and/or
Miss Roza. Nothing too was mentioned to Ken Chan and/or the 1 s t
defendant about the RM18,000.00 deposit paid by the plaintiff
and/or about the mysterious RM50,000.00 paid by the plaintiff to
the 2 n d defendant.
56. The events which happened after 18.12.2007 as shown in the

emails below would further reinforced the fact that the 2 n d
defendant had acted without authority in the purported sale of the
said.
57. On 18.12.2007 at about 6.57pm (“at page 10 of B2”) Ken Chan

informed the 2 nd defendant via email that he had no intention to sell
the property and wanted to keep the said property for long term
investment. Ken Chan wrote:
Hi Jenny,
I only received your email on Oct 29 and you told me that you have
found a purchaser. You also informed me that you will confirm me
all the details on or before November 7. After Nov 7, I have not
heard any news from you.
I have arranged the second mortgage for the property in November

already.
Ken
58. On the same day at about 7.35pm (“at page 9 of B2”) Ken Chan
again emailed the 2 n d defendant as follows:
54
Hi Jenny,
Re the following property L14 Plaza Damas, Sri Hartamas for 2/F
and 3/F, I have arranged the second mortgage already. Please
inform your tenant our valuer will go to inspect the property.
I have decided to keep the property for long term investment. We

have no interest to sell the property at the moment.
Regards
Ken
59. Ken Chan had again emailed the 2 n d defendant on 19.10.2007 at

11.49 am (“at page 8 of B2”) where Ken Chan said:
Hi Jenny,
Mandy has refused to sell the L14 Plaza Damas, Sri Hartamas for
2/f and 3/f.
Regards
Ken
60. The 2 n d defendant had responded to the above email vide her
email dated 19.12.2007 at 2.32pm (“at page 8 of B2”)
Dear Ken,
You have already confirmed to sell the property.
Referring to your e-mail to me dated 1.11.2007, I mentioned that I
will revert to you before 7th November, 2007 on the assistance of
collecting the rentals on your behalf.
I did not confirm that I will confirm with you the details of the
Purchaser’s yet, as alleged by you in your e-mail to me on 18 th
December, 2007.
As mentioned to you, the Purchaser has already paid an earnest
deposit on the sale of the 1 st and 2 nd Floor office lot at L14, Plaza
Damas, Sri Hartamas.
55
I would not think that you are able to change your mind at this stage.
Thank you.
Regards
Jenny Yip
CK Yip & Co
61. Ken Chan responded to the above e-mail as follows:
Hi Jenny,
I refer of your email of today, London time on Dec 19 at 20.00.
I have taken advice on this matter.
May I reply:
1. I did intend to sell the property but I did not instruct you to
sell it on my behalf.
2. You have no authority to sell the property on my behalf.
3. You did not come back to me by 7 November.
4. You had no authority to receive any money on my behalf.
5. I have not even seen the draft sale agreement and I have not
signed any document.
6. There is no sale.
62. As evidenced from the above e-mail, both the 1 s t defendant and
Ken Chan had no information pertaining to all the transactions that
had taken place between the plaintiff and the 2 n d defendant. It was
highlighted to this Court during the trial that Ken Chan and the 1 s t
defendant realized about the purported sale by the 2 n d defendant to
the plaintiff on 18.12.2007 only after being informed by Irene Lee,
the Financier’s agent, that the said property was sold to the plaintiff
as the valuer who was supposed to go to the said premises to
value the said property for purposes of 2 nd mortgage had been
56
denied entry by the plaintiff. This came as a shock to the 1 s t

defendant and Ken Chan as they had not authorised the 2 n d
defendant to act on their behalf. Some of the transactions were
unravelled only during this trial.
63. Further the payment of RM50,000.00 by the plaintiff to the 2 nd

defendant could not be explained by either. Both the plaintiff and
the 2 n d defendant gave contradictory versions pertaining to this
payment of RM50,000.00 to the 2 n d defendant. Another mysterious
fact was that the said amount was not reflected in the LO and/or
the draft sale and purchase agreements. Both Ken Chan and the
2 n d defendant testified that when the plaintiff was confronted about
the said RM50,000.00 he had informed them that it was meant as
an “under-table” payment to the 2 n d defendant for securing the sale
of the said property. This fact was expressly pleaded in the
plaintiff’s Statement of Claim wherein the plaintiff had pleaded tha t
these monies were “further deposit at the request of Ms Yip
and/or as commission to Ms Yip” . During cross examination, the
plaintiff testified that he had pleaded in that manner as he was not
sure what the RM50,000.00 was for (see “Notes of Proceedings
dated 11.10.2012 at page 60”) . The plaintiff had also said during
trial (see “Notes of Proceedings dated 11.10.2012 at page 54 &
55”) that the sum of RM50,000.00 was requested by the 2 n d
defendant’s husband to settle arrears for the vendor but did not
elaborate what those arrears were. The 2 n d defendant on the other
hand had testified that the said sum was paid by the plaintiff
voluntarily as the plaintiff had procured a higher loan (see Notes of
57
Proceedings dated 19.10.2012 at page 59 & 60) . The 2 n d

defendant had attempted to conceal the fact that the sum of
RM50,000.00 was paid to her vide a separate cheque and the fact
that the identity of the prospective purchaser was not disclosed to
the 1 s t defendant and/or Ken Chan proved that the 2 n d defendant
had wanted to conceal the fact that the RM50,000.00 paid to her
was the under-table money and/or commission paid to her.
64. The testimony of the 2 nd defendant pertaining to the circumstances

illustrated below clearly proved that she had not sought Ken
Chan’s approval in respect of the sale of the said property to the
plaintiff. These facts would also demonstrate that the 2 n d defendant
had taken it upon herself to decide on matters affecting the interest
of the 1 s t defendant as if the said property belonged to her. Even
the identity of the plaintiff was not disclosed to Ken Chan and/or
the 2 n d defendant for fear that the RM50,000.00 would be
disclosed. The 2 n d defendant’s reasoning that Ken Chan and the 1 s t
defendant were not interested to know who the purchaser was, was
presumptuous and speculative. Examples of circumst ances to
prove the 2 n d defendant had acted on a frolic of her own:
a. No instructions obtained from the 1 s t defendant and/or Ken

Chan pertaining to the terms to be incorporated in the LO.
Obviously there was no email to prove this fact. Neither was
there any documents sent by the 2 n d defendant to confirm
whatever instructions which she alleged would have been
given by the Ken Chan or the 1 s t defendant.
58
b. The LO was not signed by the 1 st defendant but by the 2 nd

defendant nor was it made known to the 1 st defendant until
28.12.2007 when the 1 s t plaintiff chanced upon it at the
plaintiff’s office.
c. Even in cases where the property agent is properly

authorised by the owner to put up the property for sale, the
property agent’s letter of offer to purchase would be signed
by the owner personally and not by the authorised real
property agent on behalf of the owner.
d. In law, a person could only legally execute a contract on

behalf of another person if validly appointed under a power of
attorney and in this case there was none.
e. No instructions were obtained from the 1 s t defendant and/or

Ken Chan pertaining to how vacant possessions in respect of
the tenanted unit was to be resolved. All transactions were
done by the 2 n d defendant without the approval of Ken Chan.
f. No instructions were obtained from the 1 s t defendant and/or

Ken Chan pertaining to how the prices of each of these two
units of shop lot were to be determined or fixed and/or which
of the two of the three lots which Ken Chan had in mind to
sell, if it was true that there was purported authority by Ken
Chan to the 2 n d defendant to offer the property for sale to the
59
plaintiff. I am sure that the 1 s t defendant as the vendor would

have a say and/or choice to decide which of the three floors
were to be disposed of to the prospective purchaser, in event
the 1 s t defendant had the intention to sell the said property.
g. As Ken Chan and the 1 s t defendant were citizens of the UK

and were out of jurisdiction and no power of attorney having
been executed by the 1 s t defendant herein to legally
authoris e the 2 n d defendant to act in the manner she did, the
2 n d defendant had no authority to issue the LO on behalf of
h. There was no evidence to show that the 1 s t defendant had

elected to ratify the acts of the 2 n d defendant purportedly
acting in her capacity as the “agent” of the 2 n d defendant
under Section 149 of the Contracts Act 1950 to legalise the
2 n d defendant’s act to deal with the said property. The 1 s t
defendant had infact discuss such act.
i. Neither was the 1 s t defendant nor Ken Chan consulted

pertaining to the salient terms of the proposed sale and
purchase agreements to be executed by the contracting
parties. The exchanges pertaining to the drafts were only
between the plaintiff’s lawyer and the 2 n d defendant.
60
j. Neither was there any instructions and/or directions given by

Ken Chan and/or the 1 s t defendant for the 2 n d defendant to
proceed with the preparation of the legal documentation to
effect the sale and/or whether the consideration for the said
services were discussed by Ken Chan and the 2 n d defendant.
k. Neither the 1 s t defendant nor Ken Chan was consulted on

what was going to happen to the Tenancy Agreement in
respect of the 2 n d Floor unit occupied by the 1 s t defendant’s
tenant as the said Tenancy Agreement between the 1 s t
defendant and her tenant was still subsisting.
65. Based on what I have outlined above, it is obvious that neither the
1 s t defendant nor Ken Chan was privy to the transactions between
the plaintiff and the 2nd defendant. The contemporaneous
documents as well as the contemporaneous conduct of the parties
herein did not support the allegation of the 2 n d defendant that she
had been authorised by the 1 s t defendant acting through her
husband Ken Chan by way of telephone communications to enter
into the agreement with the plaintiff. Further Ken Chan had already
indicated to the 2 n d defendant about his intention to arrange for a
2 n d mortgage for the said property in September itself (at page 19
of B2).
66. Based on the above, I am satisfied that the 2 n d defendant had not
been vested with the power of attorney and/or clear mandate by
t he 1 s t defendant t o act as her agent i n t he pur por t ed sal e of t he
61
said property to the plaintiff. None of the emails indicated that such
an authorisation had been given to the 2 n d defendant. This was a
clear example of the lawyer acting on a frolic of her own and had
acted without the authority of the 1 s t defendant. Neither was the 2 nd
defendant appointed as an authorised agent of the 1 s t defendant.
The 2 n d defendant who is a practising lawyer ought to have known
her limitations and ought to have obtained clear instruction and/or
authority to act without which the action of the 2 n d defendant in this
case would not bind the 1 s t defendant in this case.
67. It is apparent from the factual matrix of this case that the 2 n d
defendant was never authorised by the 1 s t defendant to sell the
property to the plaintiff.
68. As regards the plaintiff, the plaintiff knew from the outset that he
was negotiating with the 2 n d defendant for the purchase of the
property belonging to the 1 s t defendant who was out of jurisdiction
and who is a British citizen. The plaintiff in this case is a practisin g
lawyer and ought to have apprised himself of the deal involving a
vendor who was out of jurisdiction. The plaintiff’s version on how
he had come to know about the property too was not well
explained by the plaintiff. The plaintiff had testified that the 2 n d
defendant’s husband one Mr Michael, was the person who had
approached him about the purported sale of the property. In his
testimony, the plaintiff stated that he had communicated his
intention to purchase the said property to Mr Michael (see “Notes
o f P r o c e e d i n g s d a t e d 1 1 . 1 0 . 2 0 0 7 at p a g e 4 1 l i n e 2 6 a n d p a g e
62
42 lines 7 to 21”). The 2 n d defendant, on the other hand testified

that he had communicated his intention to purchase the said
property directly to herself and not the 2 nd defendant’s husband, Mr
Michael (see Notes of Proceedings dated 19.10.2007 at page
117 line 7 to 36) .
69. The plaintiff being the tenant of the 1 s t Floor of the property was
fully apprised of the fact that the owner of the property was not
within jurisdiction. As a practising lawyer he ought to have
cautioned himself as to whether the 2 n d defendant was authorised
by the 1 s t defendant to issue the LO. The least the plaintiff could
have done was to inquire as to whether a power of attorney had
been executed by the 1 s t defendant in favour of the 2 n d defendant
to authorise the 2 n d defendant to issue the LO and/or request for
some form of authority to act before the plaintiff proceeded to
accept the offer for sale made by the 2 n d defendant purportedly on
behalf of the 1 s t defendant. The plaintiff who is a practising lawyer
merely relied on the words of the 2 n d defendant and the fact that all
this while he was dealing with the 2 n d defendant in respect of the
tenancy of the 1 s t Floor of the said property did not mean that the
2 n d defendant was vested with the power to offer the said property
for sale. The plaintiff had only assumed that the 2 n d defendant had
been vested with the necessary authority to act for and on behalf of
the 1 s t defendant without making his own inquiries as to the 2 n d
defendant’s authority to act on behalf of the 1 s t defendant. The
plaintiff could have checked or liaised with the 1 s t defendant to
satisfy himself that he was dealing with the person who had been
63
vested with the authority to deal with the said property. He did
nothing and relied wholly on the 2 n d defendant. The plaintiff by his
own admission had testified that he had never sighted any
authority by the 1 s t defendant and never sought confirmation of
such authority. The plaintiff thought it was not necessary for him to
verify this because the 2 n d defendant had acted for the 1 s t
defendant in various other transactions including the tenancy
agreement between the plaintiff and the 1 s t defendant, the plaintiff
had dealt with the 2 n d defendant solely as “agent” in respect of the
tenancy and had never dealt directly with the 1 s t defendant and
because the 2 n d defendant is a legal practitioner he did not doubt
her integrity and authority to sell the said property.
70. This Court had taken cognisance of the fact that the plaintiff had
accepted at best the 2 nd defendant had acted as “agent” of the 1 st
defendant and not her “attorney”. The position of the 2 n d defendant
as “agent” of the 1 s t defendant, without express authority of the 1 s t
defendant, was not in law empowered to execute the LO on behalf
of the 1 s t defendant which formed a “contract” on which the
plaintiff’s claim was premised. The plaintiff relied on the basis that
the 2 n d defendant had acted as a solicitor in the previous
transactions which I had highlighted earlier in this judgment, that
the 2 n d defendant had collected or arranged for rental payments for
the 1 s t defendant in respect of the tenanted unit and the fact that
the 2 n d defendant was a fellow practitioner that the 2 n d defendant
was vested with the authority to act on behalf of the 1 s t defendant.
Al l t hese r easons coul d not be used by t he pl ai nt i ff t hat t he 2 n d
64
defendant was vested with the authority to act on behalf of the

plaintiff. Something more was required, in that, there must be clear
authority given by the 1 s t defendant to the 2 n d defendant to act on
her behalf, without which the 2 n d defendant would not be clothed
with the authority to act on behalf of the 1 s t defendant.
71. As regards the 1 s t defendant’s claim against the 2 n d defendant that

the 2 n d defendant had acted fraudulently and inequitably to the 1 s t
defendant in the purported sale of the said property, I am satisfied
that based on the facts that I had illustrated in this judgment, the 1 s t
defendant had failed to establish her case of fraudulent act on the
standard required by the law, which was beyond reasonable doubt
(see Saminathan v. Pappa [1980] 1 LNS 174 PC). This standard
of proof had been consistently applied by the courts in Malaysia.
Hence the 1 s t defendant’s Counterclaim based on fraudulent act on
the part of the 2 n d defendant had not been proven against the 2 n d
defendant.
72. Turning now to the claim of the 1 st defendant premised on the tort of
conspiracy, I am satisfied from the evidence which I had
highlighted above, the 1 s t defendant had failed to prove her claim
against the 2 n d defendant and the plaintiff for conspiracy. The three
prerequisites for the said tort to exist were not proved by the 1 s t
defendant on the standard required by the law:
i. That there was an agreement between the 2 n d defendant and

the plaintiff;
65
ii. With the aim of injuring the 1 st defendant; and
iii. The act done in the execution of the agreement had resulted
in damage to the 1 s t defendant.
73. Based on the evidence before me, the 1 s t defendant had failed to
prove its clai m of conspiracy against the 2 n d defendant and the
plaintiff (see the case of SCK Group Bhd & Anor v. Sunny Liew
Siew Pang & Anor [2010] 9 CLJ 389; Yong Tim v. Hoo Kok
Chong & Anor [2005] 3 CLJ 229).
74. Therefore the issues for this Court’s determination would have to
be answered in this manner:
Issue in the Main Claim
a. Whether the plaintiff bought the said property from the

lawfully appointed agent of the 1 s t defendant and/or with the
1 s t defendant’s authority/agreement to sell.
- The answer in the negative.
Issues in the Counterclaim
a. Whether the 1 s t defendant had appointed the 2 n d defendant

as her agent with regards to selling the property.
- The answer is in the negative.
66
b. Whether the 2 n d defendant in agreeing to sell the property to

the plaintiff was doing so pursuant to the authority as agent of
c. If the 2 n d defendant was not the 1 s t defendant’s agent,

whether the 2 n d defendant had obtained the 1 s t defendant’s
consent/approval to sell the property to the plaintiff.
d. Whether the 2 n d defendant was authorised by the 1 s t

defendant, through her husband, Ken Chan Man Wai to
agree to the sale of the property to the plaintiff.
e. Whether there was conspiracy/fraud between the plaintiff and

the 2 n d defendant with regards to this transaction and the
subsequent payments made thereto.
f. Whether the plaintiff was to pay the rental to the 1 st defendant

for the property pursuant to the Tenancy Agreement and if
the answer is in the affirmative whether he was in default of
RM21,903.88.
- The answer is in the affirmative.
67
g. Whether the plaintiff was entitled to occupy the property upon

expiry of the Tenancy Agreement after the notice to quit and
to deliver vacant possession was given vide the notice dated
12.6.2008, if the answer was in the negative, whether the 1 s t
defendant was entitled to vacant possession and mense
profits for the plaintiff’s holding over from 1.6.2008 until
vacant possession is handed over.
- The answer is in the in the negative and followed by the

affirmative.
h. Whether the 1 s t defendant is entitled to damages for fraud

and conspiracy from the plaintiff and the 2 n d defendant.
CONCLUSION
75. On the totality of the evidence adduced by the plaintiff and the 1 st
defendant both testimonial and documentary and having evaluated
the evidence before me, I am satisfied that the plaintiff had failed to
discharge the onus of establishing his claim against the 1 s t
defendant on the balance of probabilities. The plaintiff’s claim is
therefore dismissed with cost.
76. As regards the 1 st defendant’s Counterclaim, on the totality of the

evidence before me, both documentary and testimonial, I am
satisfied that the 1 s t defendant had proved her claim against th e
68
plaintiff and the 2 n d defendant on the balance of probabilities, in

that, the 1 s t defendant had not appointed the 2 n d defendant to be
her agent to act on her behalf. Neither had the 1 s t defendant
authorised the 2 n d defendant to act on her behalf for the purpose of
the sale and purchase of the said property. Hence the 1 s t
defendants Counterclaim premised on the claim that the 2 n d
defendant had no authority to act on her behalf for the sale of the
property was allowed. The 1 s t defendant’s claim premised on the
tort of conspiracy and fraudulent acts were dismissed for the
reason I had advanced earlier in this judgment. Hence the 1 s t
defendant’s Counterclaim against the plaintiff and the 2 nd
defendant as prayed in the SOC were allowed with costs plus
interest at the rate of 5% p.a was also allowed from the date of
judgment till the date of realization. As regards the 2 n d defendant
for damages to be assessed, if any, plus interest at the rate of 5%
p.a was also allowed from the date of judgment till the date of
realization. After hearing submissions from all learned Counsels
for the respective parties, I allowed costs in favour of the plaintiff in
the sum of RM30,000.00 against the plaintiff and the sum of
RM50,000.00 costs against the 2 nd defendant respectively.
77. I would like to convey my sincere thanks and appreciation to all

learned Counsels for the smooth conduct of the matter and for the
l ear ned Counsel ’ s co mmi t men t s and effor t s i s putt i ng i n a wel l
69
researched submission to assist this Court in arriving at this

decision.
(ASMABI MOHAMAD)
JUDICIAL COMMISSIONER
HIGH COURT OF MALAYA
KUALA LUMPUR
(CIVIL 4)
Date of the Grounds: 20 JULY 2013
Date of Decision: 22 APRIL 2013
Date of Notice of Appeal : 22 MAY 2013
70
Counsel:
For and on behalf of the plaintiff - EK Sng (TY Lee with him); M/s
Sulaiman & Taye
Advocate and Solicitor
Lot 32A-3, 3 r d Floor, Wisma Rapid
Jalan 30/70A, Desa Sri Hartamas
50480 KUALA LUMPUR
[Ref:ST/SEK/LCH(MNBF)/22/2008]
[T: 03-6201 1877 F: 03-6201 1875]
For and on behalf of the defendant - Renu Zechariah (Cheryl Kwan with
her); M/s Rosley Zakariah
Advocate & Solicitor
Lot 3B, Level 3, Block D
Kompleks Pejabat Damansara
Jalan Dungun
Damansara Heights
50490 KUALA LUMPUR
[Ref: RZ/A1815/MN/kcy]
[T: 03-2092 5069 F: 03-2092 5070]
For and on behalf of the 2 n d defendant in Counterclaim - Leong Wai

Hong (Eyza Farizan Mokhtar & Yu Wen (PDK) with him); M/s Skrine
Advocate & Solicitor
Unit. No 50-8-1, Level 8
Wisma UOA Damansara
50, Jalan Dungun
Damansara Heights
50490 KUALA LUMPUR
[Ref: LWH/EFM/21226860]
[T: 03-2081 3999 F: 03-2094 3211]
71

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[2013] 1 LNS 624 Legal Network Series

IN THE HIGH COURT OF MALAYA AT KUALA LUMPUR

LOH CHIN HAU … PLAINTIFF

MANDY NGAN BIK FOONG

(IN THE MAIN CLAIM)

MANDY NGAN BIK FOONG

1. LOH CHIN HAU

2. YIP CHING KIT

(IN THE COUNTERCLAIM)

AGENCY: Authority of agent - Warrant of authority - Plaintiff bought

TORT: Conspiracy - Elements of - Whether three prerequisites for tort to

[Plaintiff's claim dismissed with cost; 1st defendant's Counterclaim

Case(s) referred to:

Saminathan v. Pappa [1980] 1 LNS 174 PC (refd)

Legislation referred to:

Contracts Act 1950, ss. 26, 149 to 151, 181

Evidence Act 1950, s. 114(g)

2. In the Defence and Counterclaim, the 1 s t defendant cited the

pleaded that at the material time, the 1 s t defendant had no intention

3. Further as against the 2 n d defendant, 1 s t defendant vehemently

pursuant to the purported sale and purchase of the said property,

4. This case proceeded by way of a full hearing with two (2)

5. After giving full consideration to the evidence, documentary as well

6. Aggrieved by my decisions to dismiss the Main Claim and to allow

7. However, the 2 n d defendant, the purported agent who had issued

9. The relevant documents referred to in the course of this trial were

i. The Pleadings Document “A”

ii. Common Bundle of Documents Document “B1

iii. Supplementary Common Bundle of

Issue in the Main Claim

a. Whether the plaintiff bought the said property from the

Issues in the Counterclaim

a. Whether the 1 s t defendant had appointed the 2 n d defendant

b. Whether the 2 n d defendant in agreeing to sell the property to

c. If the 2 n d defendant was not the 1 s t defendant’s agent,

d. Whether the 2nd defendant was authorised by the 1 st

e. Whether there was conspiracy/fraud between the plaintiff and

f. Whether the plaintiff was to pay the rental to the 1 st defendant

g. Whether the plaintiff was entitled to occupy the property upon

h. Whether the 1 s t defendant is entitled to damages for fraud

THE PLAINTIFF’S CASE

12. Vide a Letter of Offer dated 2.11.2007 ( “LO”), the 2 n d defendant

plaintiff paid earnest deposit of RM18,000.00 plus another

Sale and Purchase Agreement sent earlier. Subsequent to that,

16. According to the plaintiff, as he was dealing with the 2 n d defendant

18. As regards the 1 s t defendant’s Counterclaim, the plaintiff denied of

THE 1 st DEFENDANT’S CASE

20. The 1 st defendant who is a British citizen holding a United Kingdom

of correspondences and draft legal documentations between the

30. On becoming aware of what had actually transpired, Ken Chan

the relevant document pertaining to the purported sale of the

31. The LO which was sent by the 2 n d defendant dated 2.11.2007 to

defendant’s property. All negotiations only involved the plaintiff and

on the earlier dealings with the 2 n d defendant, Ken Chan would

40. The 2 n d defendant testified that there were numerous discussions

property. Vide Ken Chan’s email dated 20.4.2007 (see “page 61

9.10.2007 (“page 74 of B1”)

10.10.2007 (“page 74 of B1”)

15.10.2007 (“page 75 of B1”)

17.10.2007 (“page 11 of B2”)

[Note: The 2 nd defendant testified that at this meeting Ken Chan

29.10.2007 (“page 76 of B1”)

1.11.2007 (“page 77 of B1”)