Kluang Wood Products

Kluang Wood Products Sdn Bhd & Anor
v.
[1998] 2 MLRA Hong Leong Finance Bhd & Anor 221
KLUANG WOOD PRODUCTS SDN BHD & ANOR

v.
HONG LEONG FINANCE BHD & ANOR
Supreme Court, Kuala Lumpur

Lamin Mohd Yunus PCA, Chong Siew Fai CJSS, Mohamed Dzaiddin FCJ
[Civil Appeal No: 02-287-94]
24 October 1998
JUDGMENT
Lamin Mohd Yunus PCA:
I have had the opportunity of reading the draft judgments of my learned brothers
Chong Siew Fai, CJ (Sabah & Sarawak) and Mohamed Dzaiddin FCJ.
My learned brother Mohamed Dzaiddin, FCJ concluded that the plaintiffs' appeal
should be dismissed and the defendants' cross-appeal be allowed. My learned
brother Chong Siew Fai, CJ (Sabah & Sarawak) on the other hand chose to allow
the 1st plaintiff's (Kluang Wood) appeal and that damages be assessed. As for
Chew, the 2nd plaintiff, his action was to stand dismissed. The cross-appeal by the
1st defendant (Hong Leong Finance) (to the extent relating to Kluang Wood) be
dismissed.
As for myself, I am inclined to agree with the finding of my learned brother Chong
Siew Fai, CJ (Sabah & Sarawak) and his reasoning in this appeal. However may I
take the liberty to observe on the construction of the letter dated 26 October 1983
(AB 17-22) which was central to the issues raised in this appeal. My learned
brother Mohamed Dzaiddin, FCJ said that the critical question here was whether
the 1st defendant was legally obliged to secure the syndication of the end-financing
of RM26 million. With the greatest of respect, the management committee
approved both the Bridging Loan and the End- Financing. The opening paragraph
of the aforesaid letter is quite clear for it states:
We refer to your loan application and are pleased to confirm that our Management
Committee has approved your Bridging Loan of M$3.5 million and End-Finance
of M$26 million subject to the following terms and conditions: (Bold is mine)
I fail to appreciate how this sentence is to be read otherwise that the approval of
the two items namely:
the Bridging Loan of M$3.5 million and End-Finance of M$26 million ...
The clear wording of the approval must be given effect to. The aforesaid letter of 26
October 1983 further stipulates the following conditions:
v.
222 Hong Leong Finance Bhd & Anor [1998] 2 MLRA
Total End-Financing facilities to be syndicated by HLFB is M$26 million. HLFB

will provide facilities of up to M$5.0 million. (Bold is mine)
The first condition states that the "total end-financing facilities to be syndicated by
HLFB" and this, in my view, must be capable of conveying the meaning that the
1st defendant (HLFB) undertook to organise and to make available the said
facilities. The aforesaid condition does not state that the 1st defendant "shall
endeavour" to organise and to make available the required syndicated loans. Pang's
oral representation substantiated by the certainty of availability of the end-finance
conveyed by the letter of 26 October 1983 together with the undisputed fact that no
end-finance at all was available must necessarily constitute a fundamental breach
by the 1st defendant (HLFB) that went to the root of the contract. In effect
therefore the finding of the learned trial judge was not really misconceived.
With regard to the defence of res judicata, I say nothing more as I am in complete
agreement with my learned brother Chong Siew Fai, CJ (Sabah & Sarawak). So
also in regard to the costs of this appeal.
Chong Siew Fai CJ (Sabah & Sarawak):
I have read the judgment of my learned brother, Mohamed Dzaiddin, FCJ. With
regret, I find myself unable to agree with him except on the issue of liability
relating to the initial drawdown on the end-finance. In the circumstance, it is
necessary that I set out the reasons for my decision.
Background Facts
The 1st appellant, Kluang Wood Products Sdn. Bhd. (Kluang Wood), was a
licensed developer and the registered proprietor of all that parcel of land held under
Johore Grant No. 2365 for Lot No. 506 in the district of Johore Bahru (hereinafter
referred to as the "said land"). The 2nd appellant, Chew Beng Gim, (deceased and
represented by his personal representative in this appeal) was a director of Kluang
Wood.
In 1983, Kluang Wood was desirous of developing the said land into a housing
project to be known as Taman Mewah comprising of 489 units of different types of
houses. The project was expected to be completed at the end of 1985. To that end,
Chew Beng Gim (Chew) managed to get introduced to one W.P. Pang (Pang)
who, at the material time, was the southern regional manager of the 1st
respondent, Hong Leong Finance Berhad (Hong Leong), with a view to
negotiating the financing of the Taman Mewah project. They met in July/ August
1983.
According to Chew (PW1), during the negotiation between him and Pang, the
latter agreed that Hong Leong would furnish Kluang Wood with a bridging loan
and a syndicated end-finance with Hong Leong taking the lead. Pang had
v.
represented to him in the course of their negotiation that for a finance company of
Hong Leong's repute, the amounts of the end-finance and the bridging loan would
be "peanuts". Chew also said that the date of the drawdown of the endfinance was
also discussed and the first drawdown thereof was expected to be in the first
quarter of 1984.
Following the negotiation, Hong Leong issued a letter of offer dated 26 October
1983 which was accepted by Kluang Wood on 28 October 1983. The material parts
of the letter reads:
HONG LEONG FINANCE BERHAD (Ditubuhkan di Malaysia)
26 October 1983 M/s Kluang Wood Products Sdn. Bhd. 4th Floor, SPPL Building
315, Alexandra Road, Singapore 0315
Dear Sirs
Re: Bridging Loan Of M$3.5 Million And End-Finance Of M$26 Million
of M$26 million subject to the following terms and conditions:
1) For Bridging Loan
Loan Amount : M$3.5 million
Duration : 24 months from-the date of first drawdown.
Security : The Bridging Loan shall be secured by:
(a) A first fixed charge under the National Land Code on the 32.325 acres of land
to be developed and known as Johore Grant No. 2365 Lot No. 1466, District of
Johore Bahru.
When individual titles are available, the Bridging Loan shall be secured by first
fixed charge over the 498 titles.
(b) Joint and several guarantee of all the following persons:
i) Ong Tiong Soon
ii) Chew Beng Gim
iii)Leonard Cheng Tye Loke.
iv) Peter Gan Siew Chong
v) Yap Teck Lock
vi) Yap Teck Huat
v.
(c) Full and unconditional guarantee of Feng Yuan Holding Pte. Ltd.
...
Repayment : Payments of monthly interest on the amount drawdown shall begin
one month after the loan amount is released in part or in full to you or on your
behalf
...
II) For End Finance
Manager : Hong Leong Finance Berhad will be the manager for the syndication of
End-Financing facilities of M$26 millon to Kluang Wood Products Sdn. Bhd. to
finance the individual purchasers of Taman Putri.
In addition, HLFB will also participate in the syndicated loan.
Amount of : Total End-Financing facilities to be syndicated by HLFB is Facility
M$26 million. HLFB will provide facilities of up to M$5.0 million.
Purpose of : To finance the individual purchasers of the residential and Facility
shophouses in Taman Putri.
Interest Rate : For houses selling below $100,000-00 - 10% p.m. on yearly rest
basis.
For houses selling about $100,000-00 - 13.5% p.m. on yearly rest basis.
For shophouse - 14% p.m on yearly rest basis.
Duration : For Housing Loan - maximum of 15 years.
For Mortgage Loan - maximum of 10 years.
...
Participation : A participation fee of 0.5% flat on the loan amount Fee participated
shall be payable to each lender in respect of its participation in the syndication.
Management : 0.5% of total loan amount syndicated (i.e. 0.5% of M$26 M Fee =
$130,000) payable to HLFB upon execution of Master Agreement. ...
Drawdown : Loan to individual purchaser will be drawn in proportion to the
work-in-progress as certified by the Project's Architect. Before the drawdown of
each loan, the developer has to confirm that the purchaser has paid the difference
between
the selling price and the loan amount.
The final disbursement shall only be made upon issue of the Certificate of Fitness
from the relevant authority.
v.
Repayment : The Principal and interest repayment of each individual loan shall be
by equal monthly installments over the period of the loan commencing one month
from the date of full disbursement of the loan.
Security: (a) Loan Agreement between purchaser and end-financier.
(b) Assignment of the Sale & Purchase Agreement between purchaser and
developer to HLFB.
(c) A first legal charge under the National Land Code over the respective lot upon
issue of individual qualified title.
Special : HLFB reserves the right to alter the above stated terms Condition of and
conditions as and when deem necessary and to Approval accept or reject each
application for end-finance facility according to its merits and demerits.
Please note that the above offer will remain open for acceptance for 1 month i.e.
until 26th November, 1983.
If we do not receive your signed copy of this letter accepting the offer, it will be
deemed to have lapsed and new terms will have to be renegotiated.
If the above terms and conditions are acceptable to you, kindly confirm acceptance
to our offer by signing and returning the duplicate copy of this letter.
Yours faithfully For Hong Leong Finance Berhad Johore Bahru Branch,
Signed: Chuang Siow Hwee Branch Manager
I/We confirm acceptance of the above
(Signed) ... for & on behalf of Kluang Wood Products Sdn Bhd
c.c Credit Evaluation Dept.
It was the case of Kluang Wood that by the above letter, Hong Leong had
expressly or by necessary implication represented to Kluang Wood that: (a) a
bridging loan of M$3.5 million had been approved; and
(b) that an end-finance facility of M$26 million had been approved, which facility
to be syndicated by Hong Leong would be managed by Hong Leong and made
available for the benefit of the purchasers of the houses to be built under the
project. Kluang Wood also pleaded that Hong Leong had further represented that
the initial drawdown of the said end-finance facility would be in the first quarter of
1984.
It was undisputed that initially Kluang Wood applied for M$4.5 million bridging
loan and M$21 million end-finance but was instead approved M$3.5 million
bridging loan and M$26 million end-finance. As security for the bridging loan,
Kluang Wood created a charge dated 29 October 1983 over the said land in Hong
v.
Leong's favour. An added security was also furnished by Kluang Wood's directors,
including Chew, by way of a joint and several guarantee dated 29 October 1983.
It was also not disputed that the end-finance of M$26 million was not provided.
For reasons which I do not consider it necessary to set out here, the efforts of Hong
Leong to syndicate the end-finance fell through though for the M$5 million being
Hong Leong's share of the end-finance as stated in the letter dated 26 October
1983, Chew had executed a guarantee on 16 November 1984. As it turned out,
however, no end-finance at all including the M$5 million supposed to come from
Hong Leong was made available to Kluang Wood though the bridging loan of
M$3.5 million had been fully utilised by Kluang Wood.
On 8 May 1985, Hong Leong took out a writ (Civil Suit No. 354 of 1985) in the
Johor Bahru High Court against the guarantors including Chew for recovery of the
bridging loan (hereinafter referred to as the "Johor Bahru suit").
On 5 March 1986 Hong Leong obtained a summary judgment under O. 14 of
Rules of the High Court 1980 against the guarantors including Chew for the sum of
RM3,673,051.50.
On 16 May 1985 Hong Leong enforced the charge on the said land against Kluang
Wood by Originating Summons No. 210/85 in Johor Bahru. Kluang Wood did
not enter appearance nor resisted the action. An order for sale of the said land was
made by the High Court of Johor Bahru, and subsequently a date was fixed for sale
of the said land by way of public auction. The auction sale was aborted a few times
and each time a new date was fixed with reduced reserve price (M$5 million,
initially). The said land was sold to the 2nd respondent, Pelita Terang Sdn. Bhd., a
subsidiary of Hong Leong, for M$3.2 million.
Against this background, Kluang Wood and Chew commenced the present action
(subject-matter of this appeal) against Hong Leong and Pelita Terang Sdn. Bhd.,
the successful purchaser of the said land.
The Present Action
Essentially, the claims of Kluang Wood and Chew were twofold:
Firstly, they claimed that Hong Leong's failure to provide the end-finance of M$26
million as represented in its letter dated 26 October 1983 caused the failure of their
Taman Mewah project and also disabled Kluang Wood from servicing the interest
on the bridging loan. They further alleged that Hong Leong was negligent and
acted in breach of its duty when it represented to Kluang Wood that the
end-finance of M$26 million would be made available to house buyers of Taman
Mewah and that the first drawdown thereof would be in the first quarter of 1984.
They also relied on the letter dated 26 October 1983 (materially reproduced above)
to substantiate their case of Hong Leong's commitment to making the bridging
v.
loan of M$3.5 million and an end-finance of M$26 million available. Paragraph 7

of the re-re-amended statement of claim reads:
By a letter dated the 26 day of October, 1983 the 1st Defendant (Hong Leong)
expressly or by necessary implication represented to the 1st plaintiff (Kluang
Wood) as follows:
(a) that a bridging loan of $3.5 million in favour of the 1st plaintiff had been
approved; and
(b) that a syndicated end-financing facility of $26 million to be managed by the 1st
Defendant will be made available for the benefit of the purchasers aforesaid.
(brackets added).
In the alternative Kluang Wood and Chew pleaded that the aforesaid
representations of Hong Leong constituted a collateral warranty that Hong Leong
would provide the end-finance of M$26 million to Kluang Wood and that in
breach of the said warranty Hong Leong had caused them loss and damage
estimated at M$13 million.
The second claim of Kluang Wood and Chew related to the sale of the land to
Pelita Terang Sdn. Bhd. by auction. They alleged that Hong Leong had acted in
bad faith and/or fraudulently in the exercise of its power of sale in that, inter alia, it
had at all times formed the intention to purchase the said land by itself or through
the agency of another and had, through its inside knowledge of the reserve price of
the said land, waited until the reserve price was M$3.2 million before getting its
subsidiary, Pelita Terang Sdn. Bhd., to bid at the fifth and final public auction of
the said land. Kluang Wood and Chew contended that Pelita Terang Sdn. Bhd.
aided and/or abetted in the commission of the fraudulent acts of its holding
company, Hong Leong. In the alternative, Kluang Wood and Chew alleged that
Hong Leong was under a legal duty to exercise reasonable care and skill when
exercising its power of sale and at all material times had acted in breach of that
duty, resulting in loss and damage to Kluang Wood and Chew. At the trial, the
learned trial judge dismissed this claim. In the course of this appeal before us,
Kluang Wood and Chew abandoned this part of their appeal. Hence no more need
be said about it except for costs which I propose to deal later.
Defence Of Hong Leong And Pelita
Hong Leong and Pelita Terang Sdn. Bhd. launched a three-pronged defence.
Firstly, they contended that the failure of Kluang Wood's Taman Mewah project
was due to the latter's own mismanagement and poor planning. Secondly, they
denied that the letter dated 26 October 1983 had expressly or impliedly represented
as alleged or that the representations, if existed, would constitute the collateral
warranty and breach thereof as alleged. Thirdly, they pleaded that Kluang Wood
and Chew were estopped from maintaining the claim on the grounds that the
v.
issues raised had already been litigated in the Johor Bahru suit, and that Chew
being a director of Kluang Wood, Kluang Wood was well aware of all the facts at
the material times.
The Learned Trial Judge's Judgment
In her judgment the learned trial judge found Pang had the authority to approve
loans on behalf of Hong Leong. She held that based on the totality of the oral and
the documentary evidence, Hong Leong had represented to Kluang Wood that
availability of the end-finance was certain, that the first drawdown thereof would
be in the first quarter of 1984, and that Pang of Hong Leong had been negligent in
making the representations. The learned trial judge also held that Pang's oral
representations constituted a collateral warranty, which was breached, when no
part of the end-finance came from Hong Leong.
However, despite the above findings, the learned trial judge held that Hong
Leong's plea of res judicata succeeded in that the claims of Kluang Wood and Chew
in this action on negligent misrepresentations and alternatively for breach of
collateral warranty could not be litigated upon because there was privity of interest
between Kluang Wood and Chew in the Johor Bahru suit, Chew being a director
and agent of Kluang Wood. She held that res judicata applied "to put an end to any
further proceedings between the same parties based on the same facts which had
already been litigated before or could have been raised and litigated in the earlier
civil suit." (ie, the Johor Bahru suit). The learned trial judge, accordingly,
dismissed the action by Kluang Wood and Chew with costs.
Bridging Loan
Before dealing with this appeal, one point may conveniently be disposed of ie,
reasons for Kluang Wood's failure to service the bridging loan. Whilst Kluang
Wood attributed the failure to the unavailability of the end-finance as allegedly
promised by Hong Leong, Hong Leong contended that the failure was due to poor
planning and mismanagement of the project by Kluang Wood. The learned trial
judge upon a review of the relevant evidence rejected, in my opinion justifiably, the
contention of Hong Leong that poor planning and mismanagement was the cause.
There is ample material justifying the conclusion of the learned trial judge in this
regard. The evidence of Chew (PW1) showed that in the 1st quarter of 1984
Kluang Wood had secured 47 buyers, and by December 1985, they had 116
purchasers, some of whom continued with their purchases of houses despite the
unavailability of the endfinance from Hong Leong. Chew also testified that Kluang
Wood completed works on 325 units in phase 1 of the project with an estimated
work value of M$8 million. For the purpose of this appeal, however, it is
unnecessary to deal with the point as to whether the failure to service the bridging
loan was due to the unavailability of the end-finance. Judgment had already been
entered on the bridging loan in the Johor Bahru suit. Even the land charged as
v.
security for the bridging loan had been sold in the Originating Summons
proceedings. Therefore, in the treatment of this appeal and the cross-appeal, I do
not propose, unless required in the context, to dwell upon submissions of counsel
in this respect.
Appeal And Cross-Appeal
Against the dismissal of the action, Kluang Wood and Chew appealed. Hong
Leong and Pelita Terang also cross-appealed.
Before dealing with the appeal and the cross-appeal, I remind myself of the general
principle that in so far as the conclusion of a trial judge is a finding of fact on the
oral evidence set in the appearance, demeanors and credibility of the witnesses
before him or her, the appellate court should normally defer to the opinion of the
trial judge. Generally, such finding ought not be disturbed unless the appellate
court is convinced that it is wrong. It would not be sufficient to warrant any
interference merely because the appellate court entertains doubt whether such
finding is right Antonio D. Caldeira v. Frederick A. Gray [1936] MLJ Rep. 137.
In Chow Yee Wah & Anor. V. Choo Ah Pat [1978] 1 MLRA 461; [1978] 2 MLJ 41the
Privy Council approved the following test respecting appellate intervention
expressed by Lord Shaw in Clarke v. Edinburgh Tramways Co. [1919](HL) 35 at 36:
In courts of justice in the ordinary case things are much more evenly divided;
witnesses without any conscious bias towards a conclusion may have in their
demeanour, in their manner, in their hesitation, in the nuance of their expressions,
in even the turns of the eyelid, left an impression upon the man who saw and heard
them which can never be reproduced in the printed page.
What in such circumstances, thus psychologically put, is the duty of an appellate
court? In my opinion, the duty of an appellate court in those circumstances is for
each judge of it to put to himself, as I now do in this case, the question, Am I - who
sit here without those advantages, sometimes broad and sometimes subtle, which
are the priveleges of the judge who heard and tried the case - in a position, not
having those privileges, to come to a clear conclusion that the judge who had them
was plainly wrong? If I cannot be satisfied in my own mind that the judge with
those privileges was plainly wrong, then it appears to me to be my duty to defer to
his judgment.
See also Thomas v. Thomas [1947] AC 484 @ 487-488 per Lord Thankerton and
Benmax v. Austine Motor Co. [1955] 1 All ER 326 @ 329 per Lord Reid respecting
the proper function of an appellate court in dealing with findings of fact by a trial
judge.
The cross-appeal of Hong Leong and Pelita Terang is against the findings of the
learned trial judge that:
v.
(1) Kluang Wood's inability to service the interest on the bridging loan was due to
Hong Leong's failure to secure and provide the end-finance (I have earlier dealt
with this herein);
(2) the agreement between Hong Leong and Kluang Wood contained in the letter
dated 26 October 1983 placed upon Hong Leong an obligation to secure and
provide end-finance to the extent of M$26 million, M$5 million or at all;
(3) Pang had represented the provision of end-finance and that it would be a
certainty, considering that such representations were at variance with the
agreement dated 26th October 1983;
(4) the representations were negligently made and/or were capable in law of giving
rise to a collateral warranty.
Another ground of the cross-appeal contended that the learned trial judge had
erred in relying on oral representations in excess of what had been pleaded
particularly that the pleadings limited oral representations to the issue of the date
of initial drawdown of the alleged end-finance facility. Since no submission was
advanced before us by counsel on this ground, I take it that it had been abandoned.
However, I would venture to say that I do not think the pleading had expressly
rested the issue of the initial drawdown on oral representation though as the
evidence unfolded this happened to be the case. See para. 7A of the re-re-amended
statement of claim which does not expressly plead that the representation was oral.
Kluang Wood had also pleaded representation, express or implied, about the
approval and availability of the end-finance by virtue of the letter dated 26 October
1983. This representation, even by implication, is well grounded by the said letter.
The impression about certainty of the end-finance which was evidentially derived
from the negotiation between Chew and Pang went to support the representation
by the letter as pleaded. The learned trial judge came to the conclusion about
certainty of the availability of the end-finance based on both oral and documentary
evidence (see p. 91 of the appeal record). In the circumstance I do not think the
conclusion can be said to have so drastically departed from the pleading as
meriting it to be totally disregarded or set aside, though, admittedly, the pleading
could have been settled with better clarity.
The cross-appeal also contended that the learned trial judge had failed to consider
adequately or at all:
(a) the lack of committed purchasers for the housing project;
(b) Kluang Wood's inability to prove saleability of the project;
(c) that the agreement contained in the letter dated 26 October 1983 between
Kluang Wood and Hong Leong was conditional upon matters which were not
fulfilled;
v.
(d) Kluang Wood's and Chew's mismanagement of the project (already dealt with
herein earlier).
I would straightly deal with these complaints and hold that points (a), (b) and (d)
are without merits. They had been adequately considered by the learned trial judge
(See pp. 66, 74 to 77 of the appeal record). The learned trial judge had in fact held
that the allegations of poor management and poor planning on the part of Kluang
Wood had not been made out. As regards point (c), it cannot be denied upon
construction of the letter that the bridging loan and the end-finance were approved
with terms and conditions to be complied. This clearly was in the mind of the
learned trial judge. (See p. 64 of the appeal record). More will be said in this
regard. But if, by point (c), it was intended to argue that the approval was subject
to certain condition or conditions precedent, I do not find the contention tenable.
It was also contended that the learned trial judge had erred in holding that the
architect's obligation to provide architect's certificates was dependent on the
availability of the end-finance. To fully appreciate the reasoning of the learned trial
judge, it would be necessary to quote the whole paragraph of the judgment. This
appears on p. 80 of the appeal record which reads:
My answer to this objection is that the obligation to provide the architect's
certificates had not arisen at all as no end finance had been provided.
If the end finance was available, I am sure that the 1st plaintiff would have
procured the necessary architect's certificates and submitted them to the 1st
defendant for the release of the money as is the accepted practice recognised in the
building industry.
The holding of the learned trial judge relates to Hong Leong's complaint about the
absence of architect's certificates showing the stages of works completed. (See pp.
79 and 80 of the appeal record). It is important to note that the contention related
to the standardised sale and purchase agreements between the various purchasers
and Kluang Wood (more particularly cl. 4(2) thereof) as opposed to Hong Leong's
letter of approval dated 26 October 1983. Clause 4(1) stipulated instalment
payments of the purchase price in accordance with the "Third Schedule" none of
which, unfortunately, was included in the appeal record. All the sale and purchase
agreements were concluded on different dates from the later part of February 1984
till as late as December 1985 (See pp. 722-1054 of the appeal record). This is a case
where the provision of the endfinance had totally failed. In the light of the
circumstances, I do not think it can be said that the learned trial judge had erred in
holding as stated above.
The appeal and the cross-appeal ie, those grounds not yet disposed of earlier herein
may conveniently be dealt with under three heads:
(1) The existence or otherwise of Hong Leong's contractual obligation to provide
v.
the end-finance;
(2) were there negligent misrepresentations, collateral warranties, and breach
thereof by Hong Leong?
(3) availability of res judicata or issue estoppel as a defence.
(1) Contractual Obligation
Mr. Manjit Singh submitted before us that Hong Leong's letter of offer dated 26
October 1983 and Kluang Wood's acceptance thereof constituted, inter alia, a
distinct contractual obligation on the part of Hong Leong to provide a syndicated
end-finance of M$26 million of which Hong Leong would take participation of
M$5 million. In support thereof, he alluded to the guarantee executed by the
directors of Kluang Wood (including PW1 Chew) for Hong Leong's own
contribution of M$5 million towards the end-finance. Mr. Cecil Abraham for Hong
Leong, on the other hand, contended that Hong Leong's obligation was only to
provide the bridging loan and that as for the endfinance, there were terms and
conditions with which Kluang Wood must first comply before Hong Leong's
obligation to provide it arose, one of which was said to be that Kluang Wood must
produce the architect's certificate showing the work progress before the end-finance
would be released and that since none was shown, Hong Leong's obligation for a
drawdown did not arise.
Upon review of the totality of the oral and the documentary evidence adduced, the
learned trial judge found that Hong Leong had represented to Kluang Wood that
availability of the end-finance was a certainty and that the first drawdown would
be in the first quarter of 1984. (I shall deal with this latter finding later). And, based
on the agreement contained in Hong Leong's letter dated 26 October 1983 and the
guarantee dated 16 November 1984 in favour of Hong Leong respecting the M$5
million being part of the end-finance, the learned trial judge held that Hong Leong
Finance was contractually bound to provide its contribution of the end-finance but
had failed to do so.
Hong Leong's contractual obligations could properly be ascertained from its letter
of offer dated 26 October 1983 which Kluang Wood had accepted. The letter as
accepted by Kluang Wood clearly showed Hong Leong's commitment to the
end-finance of M$26 million to be syndicated by Hong Leong and in which Hong
Leong would participate M$5 million. Indeed the terms and conditions relating to
the end-finance and contained in the said letter are clear leaving no room for
surmise on Hong Leong's obligation to make available the end-finance to Kluang
Wood through syndication and Hong Leong's participation of M$5 million. The
letter clearly stated that Hong Leong had "approved" the end-finance of M$26
million. There is nothing in the letter indicating the approval being subject to any
condition precedent or to Hong Leong being able to get the syndicated loan or the
v.
like. In the circumstance, all such terms and conditions in the letter relating to the
management of the end-finance by Hong Leong, total amount of the end-finance to
be syndicated, and Hong Leong's participation therein, reinforce the stipulation
that the endfinance would be furnished.
(2) Any Negligent Misrepresentations, Collateral Warranty And Breach Thereof
To recapitulate, it was not disputed that there had been negotiations for
endfinancing between Chew and Pang in July/August, 1983. The impugned
representations contended to have been made by Pang to Chew (PW1) were, in
essence, that for a financial institution like Hong Leong to procure a syndicated
end-finance of M$21 million (the amount mentioned during the discussion, as the
evidence shows) would present no problem and that the first drawdown of the
end-finance would be in the first quarter of 1984. It is in the evidence of Chew that
Pang had told him that the total amount including the bridging loan and the
end-finance was peanuts for Hong Leong and would pose no problem, that the
assurance as to the availability of the syndicated loan by Pang was not, in any way,
qualified, and that, relying on the aforesaid representations, Kluang Wood applied
for and obtained approval of the facilities including the availability of the
syndicated end-finance of M$26 million of which Hong Leong itself would
contribute M$5 million.
Chew was not challenged about Pang making the representations nor was there
any cross-examination thereon. Pang did not give evidence. Regarding the
whereabouts of Pang, the learned trial judge was critical of the lack of evidence as
to when it became apparent that Pang could not be traced and also of the lack of
evidence on the efforts made to trace him.
On the evidence as adduced, the learned trial judge, in my opinion, was justified in
concluding that Pang had made the representations and that they were "unrebutted
and unchallenged."
As regards Pang's representation that the first drawdown of the end-finance would
be in the first quarter of 1984, I agree with my learned brother Mohamed Dzaiddin
J that no liability could be attached to Hong Leong. The essence here is the timing
ie, the first quarter of 1984. Under the heading "drawdown" contained in the
subsequent letter of Hong Leong dated 26 October 1983 and accepted by Kluang
Wood, it was stipulated, inter alia, that the end-finance would be "drawdown in
proportion to the work-in-progress as certified by the Project's Architect."
According to Chew's evidence, the drawdown for the first quarter would be in the
region of M$1,072,200. Hong Leong's own share in the end-finance was M$5
million. But there is no evidence showing that the architect's certificate required
under the said letter had been issued. On the evidence, the benefit of doubt ought,
in my opinion, be given to Hong Leong in that the first drawdown might have been
furnished had the requisite certificate been issued. Therefore, it is my view that in
v.
so far as there had been no first drawdown of the end-finance in the first quarter of
1984 as represented, no blame ought to be attributed to Hong Leong.
It may be convenient to state here, however, that the above reasoning does not
hold good for Hong Leong's total failure of making available the end- finance after
the first quarter of 1984. In this regard different considerations apply. Here the oral
representation substantiated by the letter dated 26 October 1983 related to the
certainty of availability of the end-finance without reference to any specific time. It
is not disputed that no end-finance at all was available to Kluang Wood and there
is evidence that the syndication fell through. This became obvious after the first
quarter of 1984. Therefore, there had been a fundamental breach by Hong Leong
that went to the root of the contract. It is in the evidence of Chew that the
end-finance was, at least, partially needed to finance the construction of the
project. I use the words "at least, partially," because there is also evidence that the
end-finance was needed for service of the interest on the bridging loan. In dealing
with the contentions of parties respecting the reasons for the failure of the Taman
Mewah project (ie, owing to the failure to provide the end-finance as promised as
contended by Kluang Wood, or because of poor planning and mismanagement of
the project as advanced by Hong Leong), the learned trial judge found, which I see
no reason to disagree, that failure of the project was not due to any poor planning
and mismanagement thereof. In the circumstance, it is not open to Hong Leong to
use the lack of architect's certificates as an excuse to shred liability for its own
fundamental failure.
As regards the criticism that the representation rested on the impression derived by
Chew from the negotiation with Pang rather than on Pang's actual utterances, I fail
to see why an impression, if properly formed from negotiation with someone,
cannot form the basis of a representation. See eg, Box v. Midland Bank Ltd [1979] 2
Llyod's Rep. 391 (discussed later). If there is any doubt, it is for the opposing party
to test the propriety or correctness of the alleged impression. In the instant case,
Chew was not at all cross-examined in this regard. On the other hand the
subsequent letter dated 26 October 1983, approving, inter alia, the end-finance,
contrary to being "at variance" as alleged, in fact materially substantiated Chew's
impression respecting certainty of the financial arrangement. I see no merit in the
complaint.
One point though ought, in my opinion, be clarified. In her judgment, the learned
trial judge said to the effect that Pang had represented, inter alia, "that the
availability of end-finance was a certainty." If, by this, it were taken to mean that
Pang had actually uttered the word "certainty", then, with respect, a perusal of the
notes of evidence does not show that Chew had used the word "certainty" in his
testimony. However, this, in my opinion, does not render the conclusion of the
learned trial judge untenable. On the evidence relating to the representations made
by Pang to Chew, it is not an unfair or unreasonable conclusion that what Pang
v.
had represented to Chew gave the latter the impression on certainty of the
availability of the end-finance.
For Hong Leong, it was contended that the learned trial judge did not find that
Pang had been negligent in making the representations. Whilst it is true that the
learned trial judge did not expressly hold that the representations were negligently
made, it is obvious from the facts and the circumstances and from the manner she
treated them that she was fully aware that a case of making statements negligently
had to be made out. In point of law, proof of negligence involves proof of some
duty owed by the defendant to the plaintiff, some breach of that duty and damage
to the plaintiff which is causally connected with the breach of duty to take care.
In relation to statements made in pre-contractual negotiations, if a contracting
party is under a duty of care in making such statements, a breach of that duty may
lead to liability in tort for negligence. Thus in Esso Petroleum Co. Ltd v. Mardon
[1976] 2 All ER 5 CA where the plaintiffs' servant holding himself out as having
special expertise made a negligent representation in circumstances which gave rise
to the duty to take reasonable care to see that the representation was correct, and
the duty of care existed during the precontractual negotiations and survived the
making of the written contract, the plaintiffs were held liable in tort of negligence.
In our present case, the learned trial judge, finding that Hong Leong, through
Pang, had represented to Kluang Wood that the availability of the end-finance was
a certainty and that the first drawdown would be in the first quarter of 1984, and
noting that no end-finance at all was provided, posed the question whether Pang
had been negligent in making the representations, and alluded to the three
elements necessary to establish the existence of a duty of care as propounded in
Charlesworth & Percy on Negligence 8th Edn. p. 83 which read:
The elements, which normally are essentials, in order to establish the existence of
such a duty (i.e. duty of care), are:
(a) it (the advice or information given) must concern a business or professional
transaction, the nature of which makes clear the "gravity of the inquiry and the
importance and influence attached to the answer"
(b) the informant either realises or ought to have realised that he was being trusted
as a matter of importance to give advice or express an opinion or disclose the best
information known to him, since his statement was likely to be the basis upon
which the recipient intended to act; and
(c) in all the circumstances it was reasonable for the recipient to act on such advice,
opinion or information. (brackets added)
The learned trial judge then found
(1) that the statements made concerned a business transaction;
v.
(2) that Pang as the Chief Manager of Hong Leong, Southern Region, realised that
he was being entrusted to give all necessary information on which Kluang Wood
could act, and
(3) that, in the circumstances of this case, it was "not unreasonable" that Chew had
acted on the statements resulting, as events turned out, to the detriment of Kluang
Wood. (see pp. 92 and 93 of the appeal record.)
From the above, it is implicitly clear that the learned trial judge found Pang
negligent in making the statements.
An action for damages lies in respect of a misstatement which was negligently
made thereby causing pecuniary loss to a person relying on such statement unless
responsibility is expressly disclaimed in making the statement: Hedley Byrne & Co.
Ltd. v. Heller & Partners Ltd. [1964] AC 465 HL. In that case, Lord Morris of
Borth-y-Gest after considering the extent of liability that the making of negligent
misstatement attached to such professionals as an accountant, a solicitor or a
doctor, continued (p. 495):
I can see no difference of principle in the case of a banker.
If someone who was not a customer of a bank made a formal approach to the bank
with a definite request that the bank would give him deliberate advice as to certain
financial matters of a nature with which the bank ordinarily dealt the bank would
be under no obligation to accede to the request: if, however, they undertook,
though gratuitously, to give deliberate advice (I exclude what I might call casual
and perfunctory conversations) they would be under a duty to exercise reasonable
care in giving it. They would be liable if they were negligent although, there being
no consideration, no enforceable contractual relationship was created.
Box v. Midland Bank Ltd [1979] 2 Llyod's Rep 391 which applied the Hedley Byrne
principle (as the ratio in Hedley Byrne v. Heller, supra, is commonly known) contains
certain salient features that bore comparable similarity to those in the instant
appeal before us. There, the plaintiff, Mr. Box, a consultant engineer, asked the
defendant bank to provide finance for a project of his company. The manager of
the bank gave Mr. Box the impression that he (the manager) agreed, provided Mr.
Box took out a policy issued by the Export Credit Guarantee Department
(ECGD), in which case the consent of the bank's head office to provide the finance
would be a mere formality. The bank manager, however, failed to explain the
difference between a ECGD policy and a ECGD Banker's Guarantee (bills and
notes) issued by the same department but gave the impression that both were
equally easy to obtain. Mr. Box applied for the latter which he failed to get.
Meanwhile the head office of the bank informed the bank manager that there was
not the slightest possibility of the amount of the loan being santioned. The
company ran into financial difficulty. Mr. Box brought an action against the bank
v.
for damages in negligence on the grounds that he had suffered loss by relying on
the careless statements made by the bank manager about the availability of finance.
It was held that although the bank manager was not obliged to predict the outcome
of an application for a loan, if he did so, he was under a duty to take reasonable
care since he knew that his prediction would be relied upon. He had failed to
exercise the reasonable care to be expected of a competent bank manager as he had
given Mr. Box the impression that the granting of a loan would be a mere formality
once the policy had been obtained. Applying the Hedley Byrne principle, the bank
was therefore held liable. In his judgment, Lloyd J remarked (p. 398 right col.):
The Hedley Byrne principle is not limited to negligent advice.
It covers negligent statements generally including pre-contractual statements of the
kind which grounded liability in Esso Petroleum Co. Ltd v. Mardon [1967] QB 801
CA.
The Hedley Byrne principle was applied in our courts in Neogh Soo Oh & Ors. V. G.
Rethinasamy [1983] 1 MLRH 175; [1984] 1 MLJ 126; [1983] CLJ 663 and Chin Sin
Motor Works Sdn. Bhd. and Anor v. Arosa Development Sdn. Bhd. and Anor[1991] 3
MLRH 329; [1992] 1 MLJ 23; [1992] 2 CLJ 245. In the latter case, the appeal to
the Supreme Court was, as far as my research went, withdrawn.
On the facts and circumstances of the present case under appeal and applying the
principles of law propounded in the authorities cited above, it is obvious to me that
Pang had been negligent in making the statements upon which Kluang Wood had
acted in making the loan application and to its detriment.
Next, the complaint was about the collateral warranties. In view of what I have
said about the first drawdown of the end-finance, the collateral warranty now
relates only to the statement by Pang to the effect that the availability of the
end-finance was a certainty. For Hong Leong it was contended that Hong Leong
could not possibly have given M$26 million end-financing because of the
maximum amount imposed by Bank Negara and that to lend in excess of the
maximum, approval of Bank Negara had to be sought. Reference was made to the
evidence of DW1 Chuang Siow Hwee.
In reply, Mr. Manjit Singh for Kluang Wood submitted that the end-finance was
not to be given to a single customer but to the purchasers ie, house-buyers so that
the question of breaching the Bank Negara ruling did not arise.
With respect, I do not think the contention on behalf of Hong Leong is tenable.
The pertinent question is whether Pang had represented to Chew to the effect that
availability of the fund was a certainty. If he had, as found by the learned trial
judge, it mattered not whether approval was needed and not obtained since this
was not made known to Chew during the negotiation. It was also not mentioned in
the agreement-letter dated 26 October 1983 which stated that the end-finance
v.
would be syndicated. If sanction of the Bank Negara was indeed necessary, Hong
Leong should have made it known to Kluang Wood at some material stage or
conditioned its approval of the syndicated end-finance upon obtaining the approval
of the Bank Negara.
On behalf of Hong Leong, admissibility in evidence of the collateral warranties
based on Pang's pre-contractual statements aforesaid was called in question by
reference to s. 92 of the Evidence Act 1950 the main provision of which reads:
When the terms of any such contract, grant or other disposition of property, or any
matter required by law to be reduced to the form of a document, have been proved
according to section 91, no evidence of any oral agreement or statement shall be
admitted as between the parties to any such instrument or their representatives in
interest for the purpose of contradicting, varying, adding to, or subtracting from its
terms:
With respect, the contention, in my opinion, is unsustainable. Proviso (b) to s. 92
reads:
(b) the existence of any separate oral agreement, as to any matter on which a
document is silent and which is not inconsistent with its terms, may be proved, and
in considering whether or not this proviso applies, the court shall have regard to
the degree of formality of the document;
Thus if the additional evidence sought to be introduced falls within the scope of the
proviso, it may be admitted in evidence. In considering whether the proviso
applies, regard is to be had to the nature of the written agreement and, in my
opinion, also its surrounding circumstances. The document in the instant case is in
the form of a letter. Matter about certainty of the end-finance and Pang's utterances
giving rise to impression of such certainty are not in the document, nor is certainty
of the finance inconsistent with the terms therein. As regards the utterance about
the timing of the first drawdown, I also do not think it inadmissible. The proviso
applies. No time-frame about the first drawdown was given in the said letter. In
Tan Chong & Sons Motor Co. (Sdn.) Bhd. v. Alan McKnight [1983] 1 MLJ 220 FC
provisos (b) and (c) of s. 92 of the Evidence Act 1950 were considered and oral
pre-contract representations were held admissible. See also Tan Chong and Sons
Motor Co. Ltd. v. Yang Chin Lang [1966] 1 MLRH 309; [1967] 1 MLJ 123. English
authorities also show that where on a sale or letting of houses, the written contract
did not contain an oral warranty previously given by the vendor-builder or the
landlady's agent, the parol evidence was admitted. See Otto v. Bolton [1936] 2 KB
46 @ 50- 51; Miller v. Cannon Hill Estates Ltd. [1931] 2 KB 113 @ 118; Collins v.
Hopkins [1923] 2 KB 617 @ 629. The learned trial judge therefore was justified in
admitting them in evidence.
As to the consequence of breach of the collateral warranty by Hong Leong, the
v.
learned trial judge was obviously of the view, which I have no reason to disagree,
that the failure of the Taman Mewah project was due to unavailability of the
end-finance.
(3) Res Judicata
As stated earlier, the learned trial judge dismissed the claims of both plaintiffs,
holding that res judicata applied in that there was privity of interest between Kluang
Wood and Chew. After alluding to the fact that Chew was a director of Kluang
Wood and had "involved in the conduct of the affairs of" Kluang Wood as agent
for Kluang Wood, the learned trial judge continued:
the 1st plaintiff (i.e. Kluang Wood) must be presumed to be privy to all matters
conducted by PW1 (i.e. Chew) on behalf of the 1st plaintiff including all matters
giving rise to the cause of action in the earlier civil suit (i.e. Johore Bahru suit). As
the 2nd plaintiff (Chew) was sued as a guarantor in the earlier civil suit in respect
of the bridging loan that had been granted by the 1st defendant (Hong Leong) to
the 1st plaintif, there is therefore ample evidence to show that there is a privity of
interest between the 1st plaintiff in these proceedings before me and the 2nd
plaintiff in the earlier civil suit and to that end, res judicata is applicable to put an
end to any further proceedings between the same parties based on the same facts
which had already been litigated before or could have been raised and litigated in
the earlier civil suit. (Pages 107 and 108 of the Appeal Record).
Counsel for Kluang Wood and Chew submitted that no privity of interest existed,
there being no common interest between the two. He pointed out that the Johor
Bahru suit was on a guarantee executed by Chew. Kluang Wood was not a party
to and had no interest in that suit. Kluang Wood, on the other hand, had
independent causes of action against Hong Leong.
For Hong Leong, counsel submitted that there was privity of interest between
Kluang Wood and Chew. In support, reference was made to the evidence of Chew
in this action and his affidavit evidence in the Johor Bahru suit. Counsel pointed
out that in Hong Leong's application for summary judgment in the Johor Bahru
suit, the defendant-guarantors, including Chew, relied on the nonrelease of the
end-finance as a defence to the said application.
It may now be convenient to consider what Hong Leong had pleaded in its
amended defence on issue estoppel in this action, and what Chew had raised in the
Johore Bahru suit.
Paragraphs 24 to 27 of the amended defence read:
24. The Defendants will aver that the issues raised by the Plaintiffs in paragraphs 6 to 14 of
the Re-Amended Statement of Claim filed in this Suit have already been litigated by the 1st
Plaintiff in this Suit (Kluang Wood) in Johor Bahru High Court Civil Suit No. 354 of 1985
v.
("the Johor Suit"). The Johor Suit was commenced by the 1st Defendant (Hong Leong)
against inter alia the 2nd Plaintiff in this Suit (Chew) in respect of a Letter of Guarantee
dated 29th day of October 1983 executed by inter alia the 2nd Plaintiff in this Suit (Chew) to
secure the loan of $3,500,000/- made by the 1st Defendant (Hong Leong) to the Plaintiffs.
The High Court at Johor Bahru entered judgment against the Defendants in Johor Suit
(Chew and other guarantors) on the 5th day of March 1986 after hearing arguments from
Counsel for inter alia, the 2nd Plaintiff, one Lim Chuen Ren.
25. The 2nd Plaintiff (Chew) had in the Johor Suit filed an Amended Defence and Affidavits
setting out essentially the same Defence as all allegations raised by the Plaintiffs (Kluang
Wood and Chew) in paragraphs 6 to 14 of this suit. These allegations are dealt with the 1st
Defendant (Hong Leong) in its Affidavit in Reply in the Johor Suit.
The 1st Defendant will refer to the said Affidavits, Amended Defence and Affidavit in Reply
at the trial of this action for their full terms and effect.
26. The Defendants will also aver that the Plaintiffs in this Suit have stated in paragraph 1
of the Statement of Claim in this Suit that the 2nd Plaintiff (Chew) was at all material times
a Director of the 1st Plaintiff (Kluang Wood). The 1st Plaintiff was in the circumstances well
aware of all the facts at material times.
27. By reason of the premises the Plaintiffs are estopped from maintaining their claim
against the 1st Defendant (Hong Leong).
In para. 7 of their reply, Kluang Wood and Chew denied the allegations:
7. In reply to paragraphs 24, 25, 26 and 27 of the Amended Defence the Plaintiffs
deny that they are in law or in fact estopped from prosecuting these proceedings or
raising any of the issues herein.
By paras. 24 to 27 of the amended defence, Hong Leong alleged in effect that the
questions of negligent misrepresentation and breach of collateral warranty had
already been litigated in the Johor Bahru suit, and therefore Kluang Wood and
Chew were estopped from raising them in this action. The two questions constitute
the two causes of action in this suit. Hence such a plea is in fact a plea of res
judicata by way of estoppel to the above two entire causes of actions (as opposed to
a point in issue). It amounts to an allegation that the whole legal rights and
obligations of Kluang Wood and
Chew had been concluded by earlier judgment in the Johor Bahru suit. In the face
of such allegations by Hong Leong, the learned trial judge and this court would be
entitled to look at the reasons for the decision and the notes of evidence of the trial
judge in the Johore Bahru suit to determine whether the two questions constituting
the causes of actions herein had been determined. See Randolph v. Tuck [1961] 1 All
ER 814. Unfortunately the grounds or reasons for the decision in the Johore Bahru
suit are not exhibited in this case. Hence it has not been established that the two
v.
questions or causes of action had been adjudicated upon, the burden of which lies
on the party who alleges it ie, Hong Leong in this case.
As regards the affidavit evidence in opposition to Hong Leong's O. 14 application
for summary judgment in the Johor Bahru suit in which Hong Leong sued Chew
as guarantor of the bridging loan, paras. 8 to 13 of the affidavit of one Yap Teck
Lock, a co-defendant, made on behalf of all the defendants including Chew read:
8. The purchasers have applied for and the majority of the purchasers have been
granted loans. The loan documentation has also been done.
However the Plaintiffs (Hong Leong) have failed and still fail to release the
endfinancing.
9. I aver that if the end-financing is released there would be sufficient to pay the
amount due to the Plaintiffs.
10. I aver and contend that if the end-financing is released the sum so released will
be paid directly to the Plaintiffs.
Yet the Plaintiffs refused to release the end-financing to pay off itself.
11. I aver that the Plaintiff is estopped from claiming the sum allegedly owed by
the Developers from the Defendants (Chew and other guarantors). I further aver
and contend that it is inequitable for the Plaintiffs to claim against the Defendants.
12. The Defendants aver that prior to the signing to the alleged letter of guarantee
dated 23rd December, 1983 the Plaintiffs and/or its agents or servants agreed that
the Plaintiffs will release the loan granted to the individual purchasers and utilise
the same to pay off the amount allegedly owed by the Developers.
13. In reliance and in pursuance to the Plaintiffs and/or its agents or servant's
agreement and misrepresentation the Defendants were induced to sign the letter of
guarantee.
By paras. 8 to 11 of the above affidavit, Chew was virtually contending that
Hong Leong was estopped or it was inequitable for Hong Leong to claim the
guaranteed sum by reason of its failure to release to the purchasers the endfinance
which would have been paid directly to Hong Leong. Thus the failure to release
the end-finance on the part of Hong Leong, which was common ground in the
present action, was merely used by Chew as a ground to found estoppel against the
claim for the guaranteed sum. By paras. 12 and 13 of the said affidavit Chew
alleged that he was induced to sign the guarantee by Hong Leong's agreement and
misrepresentation that the end-finance to be granted to individual purchasers
would be used to pay off the amount allegedly owed by Kluang Wood. It will be
seen at once from the above paragraphs of the affidavit that the issues of collateral
warranty and breach thereof, and negligent misrepresentation by Pang on behalf
v.
of Hong Leong (which constitute the causes of action in the instant case under
appeal) were not even raised in the Johor Bahru suit, let alone having been
adjudicated upon as averred in para. 24 of the amended defence. In Carl Zeiss
Stiftung v. Rayner & Keeler Ltd (No. 2) [1967] 1 AC 853 H.L. Lord Reid said: (913)
The second requirement for res judicata is identity of subject-matter. As to this it has
become common to distinguish between cause of action and issue estoppel. There
is certainly no cause of action estoppel here. The question before the German court
was whether the Council for Gera were the legal representatives of the Stiftung at
one date. The question here is whether at a different date the solicitors had the
authority of the Stiftung to raise the action.
An answer, Yes or No, to the first question does not necessarily imply a similar
answer to the second.
On the same reasoning, there is, in my view, no identity of subject-matter and no
cause-of-action estoppel in our present case. As stated earlier, it is common ground
that the end-finance was never at all furnished by Hong Leong. The questions in
the Johor Baru suit was whether the failure to provide the end-finance estopped
Hong Leong from claiming the guaranteed sum from Chew, and whether there
had been misrepresentation on the part of Hong Leong and/or its agents or
servants inducing Chew to sign the guarantee dated 23 December 1983. In other
words the issues were whether there was estoppel and whether the signing was
induced by the alleged misrepresentation, if any. The questions in our present case
are whether at an earlier date there had been negligent misrepresentations and
whether the representations constituted a collateral warranty and breach thereof.
The timing and facts forming the background of the questions raised in the two
suits are different. The questions in our present case relate to matters that took
place prior to matters relating to the issues raised in the Johor Bahru suit.
Furthermore, answers, whether affirmative or negative, to the issues in the Johor
Bahru suit do not necessarily mean similar answers to the causes of action in the
present case. As for the matters raised in the affidavit, since the reasons for the
decision on the summary judgment are not available, it would not be possible to
say with any degree of certainty what had actually been decided in granting the
judgment, but from the fact that the summary judgment was entered against Chew,
it is reasonably safe to conclude that his contentions of estoppel and inducement
did not constitute any triable issue in respect of the claim under the guarantee.
As for Kluang Wood, obviously it could not have raised the issues constituting the
causes of action in the instant case in the Johor Bahru suit, it being not a party to
that action, which was an action on guarantee.
Another point of contention on res judicata is whether Kluang Wood and Chew
were estopped from raising the second claim of fraudulent or improper exercise of
power of auction sale on the ground that such claim could have been raised as a
v.
counterclaim in the charge action (Originating Summons No. 210/85 in Johor

Bahru) commenced by Hong Leong against Kluang Wood. In this regard, the
learned trial judge, relying on Kandiah Peter v. Public Bank Bhd [1993] 1 MLRA 505;
[1994] 1 MLJ 119; [1993] 4 CLJ 332; [1993] 2 AMR 3464 SC, concluded (p. 106 of
the appeal record):
Thus based on the authority of Kandiah v. Public Bank, the defendants cannot rely
on the plea of res judicata or issue estoppel either in its narrow or broader
application as the answer to the plaintiffs' second claim in the proceedings before
me. In any event, I have already decided that plaintiffs' second claim has not been
substantiated.
The contention, in my view, is without merit. In any event it need not be dealt
with. Firstly, the auction sales under which the fraudulent or improper exercise of
the power of sale were alleged to have arisen took place after the making of the
sale-order. Therefore, the allegations could not possibly be raised in the charge
action. Secondly, the learned trial judge had held that the allegations constituting
the second claim failed; and before us, the appeal relating to this second claim had
been abandoned. The contention therefore has no merit and must fail.
Then there is the issue of whether Kluang Wood was a privy to Chew so as to be
estopped from suing in this action? The relevant privity here is, of course, privity of
interest (as opposed to privity of blood or title). In House of Spring Gardens Ltd v.
Waite & Ors [1991] 1 QB 241 CA Stuart-Smith LJ observed (@ 252):
It is not easy to detect from the authorities what amounts to a sufficient interest.
In that case, the plaintiffs obtained a monetary judgment in the Republic of Ireland
against three defendants. Two of the defendants then brought another separate
action in Ireland to set the judgment aside on ground of fraud but their action was
dismissed. In subsequent enforcement proceedings in England, the court gave
judgment in favour of the plaintiffs. On appeal by the 3rd defendant who was not a
party to the second action in Ireland, it was held that the second Irish judgment
was final and conclusive on the issue as to whether or not the first judgment was
obtained by fraud and therefore could not be impeached.
The third defendant was thereby estopped from alleging that the first judgment had
been obtained by fraud because he was privy to the parties who were bound by the
estoppel, having had knowledge of the second action which he had not chosen to
join. In that case the third defendant was a party to the first action.
Gleeson v. J Wippell & Co. Ltd. [1977] 3 All ER 54 was a case on striking out action
under O. 18 r. 19 of the Rules of the Supreme Court. Nevertheless it involved the
questions of issue estoppel and the existence of privity of interest between present
and former defendants. In that case, the plaintiff, a shirt designer, unsuccessfully
brought an earlier action against some shirt manufacturers for breach of copyright,
v.
the allegation being that the shirt manufacturers had copied a shirt supplied to
them by the defendants in the present action which had itself been copied from
shirts which were copies of the plaintiff's drawing. Having lost in that earlier suit,
the plaintiff commenced the instant action against the defendants who were also
shirt manufacturers, alleging infringement of copyright in relation to the same
shirt. The defendants sought to strike out the plaintiff's action on ground that as the
central issue raised in the statement of claim ie, whether the defendants' shirts were
indirect reproductions of the plaintiff's drawing, had already been determined in
the previous action, it was frivolous, vexatious and otherwise an abuse of the
process of the court for the plaintiff to relitigate what had already been decided
against her. It was held that the defendants could not invoke the doctrine of issue
estoppel against the plaintiff. The defendant had not been a party to the previous
action and there was no ground for holding that they were in privity of interest
with the defendants in that action or that they were linked in such a way as to
make any doctrine of res judicata applicable. There was a trade relationship between
them but that was all. The court refused to strike out the action. Megarry V-C in
his judgment said: (p. 60)
... but it does seem to me that, having due regard to the subject-matter of the
dispute, there must be a sufficient degree of identification between the two to make
it just to hold that the decision to which one was party should be binding in
proceedings to which the other is party.
It is in that sense that I would regard the phrase 'privity of interest'.
He later continued:
Suppose that in the Denne action (the earlier action) the plaintiff Miss Gleeson, had
succeeded instead of failing. Would the decision in that action that Wippell (the
defendant in the instant action) had indirectly copied the Gleeson drawings be
binding on Wippell, so that, if sued by the plaintiff, Wippell would be estopped by
the Denne decision from denying liability? Counsel for Wippell felt constrained to
answer Yes to that question. ... In such a case, Wippell would be unable to deny
liability to Miss Gleeson by reason of a decision reached in a case to which
Wippell was not a party, and in which Wippell had no voice. Such a result would
clearly be most unjust. Any contention which leads to the conclusion that a person
is liable to be condemned unheard is plainly open to the gravest of suspicions. A
defendant ought to be able to put his own defence in his own way, and to call his
own evidence. He ought not to be concluded by the failure of the defence and
evidence adduced by another defendant in other proceedings unless his standing in
those other proceedings justifies the conclusion that a decision against the
defendant in them ought fairly and truly to be said to be in substance a decision
against him.
Even if one leaves on one side collusive proceedings and friendly defendants, it
v.
would be wrong to enable a plaintiff to select the frailest of a number of possible

defendants, and then to use the victory against him not merely in terrorem of other
and more stalwart possible defendants, but as a decisive weapon against them.
It appears the authorities tend to indicate that whether there is sufficient
connection to constitute privity of interest would depend on an examination of the
factual identity of interests of the parties and the fairness of binding them by a
decision in which they were not represented.
Therefore, so far as concerning Kluang Wood, for the reasons given above,
including that it was not a party to the Johor Bahru suit, there is, in my opinion, no
valid ground for holding that Kluang Wood was in privity of interest with Chew in
the Johor Bahru suit or that they were so linked as to make the doctrine of res
judicata applicable. Furthermore, the grounds for the decision in the Johor Bahru
suit were not available in evidence in the present suit and accordingly unknown.
For all the above reasons, I am of the view that Kluang Wood is entitled to succeed
in this action against Hong Leong.
Could Chew Sue?
In the case of Chew, the situation falls into a totally different category. It relates to
his capacity to sue on the two causes of action in the present suit. In her judgment,
the learned trial judge said that Chew should have brought up the two causes of
action in the Johor Bahru suit. Could he? As a matter of law, an agent who has
contracted for a disclosed and named principal cannot, as a rule, sue on the
contract. Fairlie v. Fenton [1870] LR 5 Ex 169; Evans v. Hooper [1875] 1 QBD 45;
T.P. Jordeson & Co. and Kahn v. London
Hardwood Co. Ltd. [1913] 110 LT 666. This is so even if he is the real principal
unless the other party has affirmed the contract with knowledge of the fact.
Bickerton v. Burrell [1816] 5 M & S 383; Rayner v. Grote [1846] 15 M & W 359. There
are, of course, certain other exceptions but they are not applicable in our present
case. In the instant case, it cannot be disputed that Chew, to the knowledge of
Hong Leong, negotiated for Kluang Wood throughout. The right of action to
which the collateral warranty gives rise is personal as between the two contracting
parties concerned. As between them, breach of the warranty may form the basis of
an action for damages, but it does not normally entitle a non-contracting party to
sue thereon. Therefore Chew, in my opinion, cannot sue on the two causes of
action.
Furthermore, assuming Chew had the right to sue thereon, his evidence departed
from his pleading. Paragraph 23 of the re-re-amended statement of claim reads:
23. The 2nd Plaintiff (Chew), contends and will contend that but for the breach of
the aforesaid duties owed by the 1st Defendant (Hong Leong) to him, his liability
v.
under the said guarantee and the judgment would have been extinguished by the
proceeds obtained from the lawful sale of the said land. (Brackets added)
It is clear from the re-re-amended statement of claim that the phrase "the said
guarantee" in para. 23 above referred to the guarantee executed by Chew in respect
of the bridging loan of RM3.5 million, and that "the judgment" related to the
summary judgment obtained in the Johor Bahru suit for the sum guaranteed. It is
also obvious that the "aforesaid duties" owed by Hong Leong said to have been
breached were the alleged "duty to act in good faith and honestly" and "to exercise
reasonable care and skill" in relation to the power of sale of the said land. As stated
earlier, this part of the case about fraudulent sale had been abandoned by Kluang
Wood and Chew in this appeal. Be that as it may, from the point of view of the
pleading, by the said para. 23, Chew pleaded, in effect, that had it not been for the
breach of the duties to conduct the auction sale of the charged land by Hong
Leong, his liability under the guarantee would have been settled from the sale
proceeds. However, Chew's evidence, contrary to what he had pleaded, seems,
though somewhat vaguely, to attribute the enforcement of the guarantee for the
bridging loan against him to the failure of Hong Leong to furnish the end-finance
as opposed to the alleged breach of duties relating to the auction sales as pleaded.
This was what he said in his evidence:
If the end financing had come and the 1st plaintiff had completed the project the
profits as projected by 1st defendant was $12,592,400 ...
There is a debt owing by me to the 1st defendant amounting to $3.7 million with
interests. I ask this Court for damages and for damages I have to pay
back the 1st defendant amounting to $3.7 million (p. 136 and 137 of the Appeal
Record)
One of the purposes of the end financing was to repay the interest due on the
bridging loan. ...
The end financing will assist to pay interests on the bridging loan and later on to
redeem individual lots and also finance construction of the development. (Page 147
of the Appeal Record)
In August 1983, when I negotiated with the 1st defendant, it was contemplated
that the end financing would be ultilised to pay the interests due on the bridging
loan. (Page 151 of the Appeal Record)
However he had also said:
In C.S. 354/85, I am represented by lawyers but I do not know the defences they
had put up for me. (Page 144 of the Appeal Record)
In any event, the fact that summary judgment for the bridging loan was entered
v.
against Chew in the Johor Bahru suit reasonably clearly indicated the rejection of
Chew's attempt to raise some triable issues. And there was no appeal against that
decision.
There remains claim (d) in the re-re-amended statement of claim where Chew
sought for a declaration that Hong Leong was not entitled to execute upon the
judgment obtained by Hong Leong against Chew in the Johor Bahru suit. On the
facts and the circumstances in this case under appeal including that the claim on
impropriety of the auction sale having been abandoned, and what I have said
immediately above in relation to para. 23 of the re-re-amended statement of claim,
I find no merit in the claim, which is hereby dismissed.
For the above reasons, the claim of Chew in this action must, in my opinion, fail.
Conclusions
In short, my conclusions are:
The learned trial judge was justified in holding that there had been negligent
misrepresentation about certainty of the end-finance and breach of collateral
warranty; and, contrary to the learned trial judge's finding, there is no res judicata or
action estoppel. Kluang Wood was entitled to maintain this action, and the appeal
by Kluang Wood be allowed. The order of the learned trial judge dated 18 April
1994 to the extent of dismissing Kluang Wood's claims be set aside. There be an
order for damages to be assessed; as regards Chew, his action stands dismissed for
the different reasons given above; and the cross- appeal by Hong Leong (to the
extent relating to Kluang Wood) be dismissed.
As to costs, since Kluang Wood abandoned its appeal respecting the auction sale
of the charged land but otherwise succeeds in this appeal while the estate of Chew
(deceased) represented by his wife and son fails, and Hong Leong is unsuccessful in
its cross-appeal against Kluang Wood, I would exercise the discretion and order
that (unless otherwise agreed by parties) the costs of the court below (if not taxed
yet) and the costs of this appeal be taxed, that 275 of such taxed costs be paid by
Hong Leong to Kluang Wood, and 1/3 of such taxed costs be paid by Kluang
Wood to Pelita Terang Sdn. Bhd; and that the costs of Hong Leong's cross-appeal
be also taxed and paid by Hong Leong to Kluang Wood. There be no order as to
costs respecting Chew.
Mohd Dzaiddin FCJ:
Both the appeal and cross-appeal arose out of the default of the 1st appellant, the
1st plaintiffs in the court below, to repay the bridging loan of RM3,673,051.50
owed to the 1st respondent, which was secured by the first fixed legal charge over
the 1st appellant's land and the guarantee given by the directors, one of whom was
the 2nd appellant. For convenience and brevity, I shall refer the parties herein as
v.
plaintiffs and defendants respectively.

Factual Background
The 1st plaintiffs are licensed housing developers and registered proprietor of a
piece of land held under Johor Grant No. 2365, Lot 506, Mukim of Kluang,
Daerah Kluang, Johor (the said land). In early 1983, they negotiated with the 1st
defendant, a public limited company carrying on the business of a licensed finance
company under the Finance Companies Act 1969, for banking facilities to enable
them to develop the said land into a housing estate to be known as Taman Mewah.
On 24 August 1983, a formal application (AB15-16) was made seeking for RM4.5
million for bridging loan and RM21 million as end-finance. On 26 October 1983,
the 1st defendant approved the application, vide the letter of approval, AB17-22,
(hereinafter called the agreement) which, inter alia, states:
26 October, 1983
M/s Kluang Wood Products Sdn. Bhd. 4th Floor, SPPL Building 315, Alexandra
Road, Singapore 0315
Dear Sirs
Re: Bridging Loan Of M$3.5 Million And End-Finance Of M$26 Million
(1) For Bridging Loan
Loan Amount : M$ 3.5 million
Duration : 24 months from the date of first drawdown
Security : The Bridging Loan shall be secured by:
a) A first fixed charge under the National Land Code on the 32.325 acres of land to
be developed and known as Johore Grant No. 2365 Lot No. 1466, District of
Johor Bahru.
When individual titles are available, the Bridging loan shall be secured by first
fixed charge over the 498 titles.
b) Joint and several guarantee of all the following persons:
i) Ong Tiong Soon
ii) Chew Beng Gim
iii)Leonard Cheng Tye Loke
v.
iv) Peter Gan Siew Chong

v) Yap Teck Lock
vi) Yap Teck Huat
c) Full and unconditional guarantee of Feng Yuan Holding Pte. Ltd.
Interest Rate : The prescribed rate of interest payable on this loan shall be 14.5 p.a.
on monthly reducing basis.
...
Repayment : Payments of monthly interest on the amount drawdown shall begin
one month after the loan amount is released in part or in full to you or on your
behalf.
The Bridging Loan shall be fully repaid by redemption payments at the following
rates:
...
... ...
... ...
a) ...
b) ...
i) ...
ii) ...
iii)...
iv) ...
v) ...
c) ...
d) ...
e) ...
f) ...
g) ...
... ...
... ...
... ...
v.
(II) For End-Finance

Manager : Hong Leong Finance Berhad will be the manager for the syndication of
End-Financing facilities of M$26 million to Kluang Wood Products Sdn. Bhd. to
finance the individual purchasers of Taman Putri.
In addition, HLFB will also participate in the syndicated loan.
Amount of Facility Total End-Financing facilities to be syndicated by HLFB is
M$26 million. HLFB will provide facilities of up to M$5.0 MILLION.
Purpose of facility To finance the individual purchaser of the residential and
shophouses in Taman Putri.
... ...
... ...
Management 0.5% of total loan amount syndicated (i.e. 0.5% of
Fee: M$26M = $130,000) payable to HLFB upon execution of Master Agreement.
... ...
... ...
Drawdown : Loan to individual purchaser will be drawdown in proportion to the
work in progress as certified by the Project's Architect. Before the drawdown of
each loan, the developer has to confirm that the purchaser has paid the difference
between the selling price and the loan amount.
The final disbursement shall only be made upon issue of the Certificate of Fitness
from the relevant authority.
... ...
Security : a) Loan agreement between purchaser and endfinancier.
b) Assignment of the Sale & Purchase Agreement between purchaser and
developer to HLFB.
c) A first legal charge under the National Land Code over the respective lot upon
issue of individual qualified title.
Yours faithfully, for Hong Leong Finance Berhad Johor Bahru Branch
Sgd Chuan Siow Hwee Branch Manager
I/We confirm acceptance of the above
Sgd for & on behalf of Kluang Wood Products Sdn Bhd.
On 29 October 1983, the 1st plaintiffs created the first legal charge of the said land
v.
in favour of the 1st defendant. Likewise, the 2nd plaintiff together with the other
directors of the 1st plaintiffs executed the letter of guarantee, AB23-30. It is to be
noted that the charge and guarantee were given as securities for the bridging loan.
Upon registration of the charge, the first payment of RM200,000 of the bridging
loan was disbursed to the 1st plaintiffs on 31 October 1983.
Consequently, in January 1984, based on information and particulars supplied by
the 1st plaintiffs, the 1st defendant prepared a placement memorandum, for
syndication of end-finance of RM26 million. The object of this placement
memorandum was to enable the 1st defendant to invite other interested financial
institutions to participate in the syndication of the end finance. It is of significance
to note that under the agreement the 1st defendant were mandated to be the lead
manager for the syndication and had committed to provide RM5.0 million toward
the end-financing. Three financial institutions, namely, Public Finance Berhad,
Malaysia Credit Finance Berhad and Malayan Banking Berhad responded to the
1st defendant's invitation to participate. It seemed that Public Finance Bhd. was
willing to commit RM3 million provided the 1st defendant surrendered the issue
document of title of the lots held by the latter as security, an undertaking that they
relinquish all their rights and interests over the said lots in favour of Public Finance
Bhd. and that these lots be excluded for auction in the event of foreclosure
proceedings by the 1st defendant. However, since the 1st defendant failed to give
the above undertaking, Public Finance Bhd. cancelled their offer to participate in
the syndication of the end-finance on 14 March 1986. In the end, there was left
only the 1st defendant's commitment of RM5.0 million, where security was given
in the form of a letter of guarantee dated 16 November 1984, AB216- 228 executed
by the directors of the 1st plaintiffs, 2nd plaintiff and Feng Yuen Holdings Pte. Ltd.
It is common ground that the 1st defendant had fully disbursed the bridging loan of
RM3.5 million to the 1st plaintiff. By December 1984, the 1st plaintiffs were in dire
financial straits because the syndicated end-finance which was part of the
agreement was still not available despite the execution of the second guarantee,
AB216-228. The 1st plaintiffs also contended that in compliance with the
agreement, they had submitted to the 1st defendant 116 applications for housing
loan by their purchasers.
Finally and most significantly, as at 31 January 1985, the 1st plaintiffs were owing
the 1st defendant RM3,673,051.50 on the bridging loan. Upon failure to repay the
aforesaid loan, the 1st defendant took the following legal action. First, on 8 May
1985 they issued a writ against the guarantors of the 1st plaintiffs (including the
2nd plaintiff) in Johor Bahru High Court C.S. No: 354 of 1985 seeking to enforce
the guarantee, AB23-30. On 5 March 1986, a final judgment under O. 14 RHC was
obtained against the 2nd plaintiff and other guarantors for the aforesaid sum of
RM3,673,051.50.
v.
Secondly, on 16 May 1985 the 1st defendant filed an application for Order for Sale
under s. 256 of the National Land Code 1965 (the Code) against the 1st plaintiffs in
Johor Bahru High Court O.S No. 210/1985. As the 1st plaintiffs did not enter an
appearance, on 17 July 1985, the court granted the Order for Sale of the said land.
An auction sale was first fixed for 10 November 1985, but this was never
proceeded with as the valuation of the said land was only completed on 23
December 1985. Three subsequent auctions were carried out without success.
Finally, at the fifth auction on 25 January 1987, the said land was sold to the 1st
defendant's marketing manager, DW1, who bid on behalf of the 2nd defendant a
wholly owned subsidiary of the 1st defendant for RM3.2 million.
Thus, it is against the above factual background that the plaintiffs had commenced
this action against the 1st and 2nd defendants in the court below.
Pleadings
The plaintiffs' claim against the defendants is for damages for negligent
misrepresentation and/or breach of collateral warranty. The re-re-amended
statement of claim averred that by the agreement, the 1st defendant expressly or by
necessary implication represented to the 1st plaintiffs that a bridging loan of RM3.5
million had been approved and that a syndicated end-financing facility of RM26
million to be managed by the 1st defendant would be made available for the benefit
of the purchasers by the first quarter of 1984. The plaintiffs further averred that at
the time of making the aforesaid representation the 1st defendant intended and it
well knew or ought to have known that the 1st plaintiffs would rely on the said
representation and be induced to act upon it, in particular, the 1st defendant had
knowledge or means of knowledge that the housing project on the said land could
not be completed without the endfinance of RM26 million being made available. It
was further contended that the 1st plaintiffs to the knowledge of the 1st defendant
had a legitimate or reasonable expectation that such end-finance would be made
available in order to successfully complete the housing project. Consequently, the
1st defendant failed to make available the promised end-finance facility of RM26
million, which resulted in their loss.
The plaintiffs contended that the 1st defendant was under a duty to take reasonable
care in the making of the said representation and alleged that the 1st defendant had
made the said representation negligently and thereby acted in breach of their duty.
Paragraph 12 contained particulars of negligence.
On the collateral warranty, the plaintiffs pleaded in para. 13 to the effect that the
representation thereof constituted a collateral warranty by the 1st defendant that it
would provide end-finance of RM26 million to the 1st plaintiff. The 1st defendant
acted in breach of the terms of the said collateral warranty.
The Defence
v.
The defendants in their amended defence, denied the plaintiffs' allegations that
they were guilty of negligent misrepresentation, and/or breach of collateral
warranty in respect of the end-financing. They averred that they owed no duty of
care to the plaintiffs on the alleged representation, and further denied that the said
representation, if any, was negligently made. By way of further defence, the
defendants contended that the plaintiffs were estopped from litigating the principal
cause of action in the suit on the ground of res judicata, which are pleaded in paras.
24 to 27 of the amended defence. In essence, the defendants alleged that the issues
raised by the plaintiffs in paras. 6 to 14 of the re-re-amended statement of claim
have already been litigated by the 1st plaintiff in Johor Bahru High Court Civil Suit
No: 354 of 1985. The Johor Bahru suit was commenced by the 1st defendant
against, inter alia, the 2nd plaintiff in this suit in respect of a letter of guarantee
dated October 1983 executed by, inter alia, the 2nd plaintiff in this suit to secure the
loan of RM3.5 million made by the 1st defendant to the plaintiffs. The High Court
Johor Bahru entered judgment against the defendants on March 1986 after hearing
arguments from counsel.
The 2nd plaintiff had in the Johor Bahru suit filed an amended defence and
affidavits setting out essentially the same defence as all allegations raised by the
plaintiffs in paras. 6 to 14 of this suit. These allegations are dealt with by the 1st
defendant in their affidavit in reply in the Johor Bahru suit.
The defendants also averred that the plaintiffs have stated in para. 1 of the
re-re-amended statement of claim that the 2nd plaintiff was at all material times a
director of the 1st plaintiffs. The 1st plaintiffs were in the circumstances well aware
of all the facts at material times.
By reasons thereof, the plaintiffs were estopped from maintaining their claim
against the 1st defendants.
Judgment
After hearing the evidence and considering the written submissions of counsel, on
18 April 1994 Siti Norma J (as she then was) made two basic findings:
(1) That the plaintiffs have succeeded on their principal claim against the 1st
defendant for negligent misrepresentation with respect to the end-finance of RM26
million and the representations made on behalf of the 1st defendant regarding its
availability constituted a collateral warranty which had been a breach when no part
of the money was made available to the 1st plaintiffs. (2) That the doctrine of res
judicata or issue estoppel in the broader sense applies to the proceedings before her.
To that end, the plaintiffs' principal claim and the alternative cause of action
cannot be relitigated.
The Appeal
v.
The appeal is against the finding of the learned trial judge that the plaintiffs'
principal cause of action on the tort of negligent misrepresentation and
alternatively for breach of collateral warranty could not be litigated again in the
proceedings before her on the ground of res judicata or issue estoppel in its broader
sense. In her grounds of decision (AR Vol. I Bahagian A & B p. 102), her Ladyship
gave the following reasons:
This plea (of res judicata or issue estoppel in its broader application) stems from
separate proceedings commenced by the 1st defendant against the plaintiffs prior to
the filing of this suit. In Johor Bahru Originating Summons No. 210/ 85, the 1st
defendant as chargees of the property commenced foreclosure proceedings against
the 1st plaintiff to recover the outstanding amount due on the bridging loan and on
17th July, 1985, obtained an Order of Court to sell the property by way of public
auction.
The 1st plaintiff did not contest the proceedings and neither the 2nd defendant nor
the 2nd plaintiff were cited as parties.
The filing of the foreclosure proceedings was followed on 8th May, 1985, by the 1st
defendant filing Johor Bahru Civil Suit No. 354/85, seeking to enforce the
guarentee dated 29th October, 1983, executed by the 2nd plaintiff and the other
Directors of the 1st plaintiff. This guarantee and the charge executed by the 1st
plaintiff were the securities provided by the plaintiffs for the bridging loan.
Following a contested Order 14 proceedings, the 1st defendant obtained final
judgment against the 2nd plaintiff for the sum of RM3,673,051.50 together with
interest and costs on 5th March, 1986.
Neither the 2nd defendant nor the 1st plaintiff were parties to this earlier civil suit.
It is the defendants' contention that since all the issues raised in the proceedings
before me have been pleaded as defences and argued extensively by the 2nd
plaintiff in the Order 14 proceedings in the earlier civil suit, firstly before the Senior
Assistant Registrar and secondly before the Judge in Chambers on appeal, and
both had found the issues to be unconvincing, there had already been a final
decision on those issues for which the plaintiffs are estopped from raising them
again in these proceedings before me. The defendants also rely on the broader
application of res judicata that the issues now raised by the plaintiffs to support their
causes of action on negligent misrepresentation and breach of a collateral warranty
could and should have been raised and litigated upon in the earlier civil suit.
On the same token, the defendants maintain that the same issues could and
should have been raised in the foreclosure proceedings before the Johor Bahru
High Court.
Her Ladyship continued (ibid. p. 106):
v.
The plea of res judicata is founded on the basis that since a decision has been made
in any case or matter, there should be a finality in that decision and the parties
affected by the decision or their privies are estopped from litigating the same cause
or matter in subsequent proceedings before the same or another forum.
It is now settled law that for the plea to succeed, the following requirements must
be present.
(1) The same issues must have been decided in both proceedings.
(2) The judicial decision said to create the estoppel was final.
(3) The parties to the judicial decision or their privies were the same persons as the
parties to the proceedings in which the estoppel is raised.
It is only in respect of requirement (3) that the plaintiffs question the applicability
of res judicata on the ground that there is no unity of parties or interest as the 1st
plaintiff were not cited as a party in the earlier civil suit.
That is very true but it must be remembered that as a Director of the 1st plaintiff
and the person actually involved in the conduct of the affairs of the 1st plaintiff,
PW1 is an agent of the 1st plaintiff and as the principal, the 1st plaintiff must be
presumed to be privy to all matters conducted by PW1 on behalf of the 1st plaintiff
including all matters giving rise to the cause of action in the earlier civil suit. As the
2nd plaintiff was sued as a guarantor in the earlier civil suit in respect of the
bridging loan that had been granted by the 1st defendant to the 1st plaintiff, there is
therefore ample evidence to show that there is a privity of interest between the 1st
plaintiff in these proceedings before me and the 2nd plaintiff in the earlier civil suit
and to that end, res judicata is applicable to put an end to any further proceedings
between the same parties based on the same facts which had already been litigated
before or could have been raised and litigated in the earlier civil suit.
To that end, the plaintiff's principal cause of action on the tort of negligent
misrepresentation and the alternative cause of action for breach of a collateral
warranty cannot be litigated again in this Court and on that finding I dismiss
(1) the plaintiffs' principal and alternative claims on the ground of res judicata or
issue estoppel in its broader sense.
(2) the second claim on the ground that it has not been substantiated.
Counsel's Submission
Encik Manjit, for the plaintiffs, submitted that the learned trial judge erred in
holding that the plaintiffs' action was barred by res judicata or issue estoppel in its
broader sense. Counsel submitted that firstly, her Ladyship ought to have
recognised that neither the 1st plaintiffs nor the 2nd defendant was a party to the
Johor Bahru suit, which was a suit brought by the 1st defendant against
v.
guarantors. Such being the case, the 1st plaintiffs could not possibly have raised the
cause of action of negligent misrepresentation and breach of collateral warranty as
a defence or counterclaim in the Johor Bahru suit. No doubt, the 1st plaintiffs
could have raised these issues in their affidavit to show "cause to the contrary"
against the 1st defendant's application for order for sale in Johor Bahru O.S. No.
210 of 1985. However, since foreclosure proceedings do not result in a final
judgment (Peter Kandiah v. Public Bank Bhd [1993] 1 MLRA 505; [1994] 1 MLJ 119;
[1993] 4 CLJ 332; [1993] 2 AMR 3464), res judicata did not apply to the 1st
plaintiffs here. The plaintiffs should not therefore be estopped from raising the
issues which they could have raised in the foreclosure proceedings in the present
action. Further, the Johor Bahru suit was concerned with the recovery of the
amount owed under the bridging loan for which the 2nd plaintiff in this suit was
one of the guarantors, whereas the present action was a tortious action of negligent
misrepresentation made with respect to end-financing. There were thus two distinct
actions. Since the 1st plaintiffs could not have raised the present cause of action as
a counterclaim in the Johor Bahru suit, they were therefore not precluded from
bringing the present claim as a separate action.
Pausing here, lest it be forgotten, the 2nd plaintiff was named as one of the
defendants in the Johor Bahru suit.
Secondly, it was submitted that the learned judge was wrong in holding that the 1st
plaintiffs were privy to the defendants in the Johor Bahru suit. The learned judge
ought to have concluded that there was no common interest between the 1st
plaintiffs in the present action and the guarantors, who were the defendants in the
Johor Bahru suit.
The Law
In this appeal we are concerned with the doctrine of res judicata which has been
extended to what is now described as issue estoppel in its wider sense. In Carl Zeiss
Stiftung v. Rayner and Keeler Ltd. (No. 2)[1967] 1 AC 853 at pp. 933-934 Lord Guest
explained what is issue estoppel:
As originally categorised, res judicata was known as "estoppel by record." But as it
is now quite immaterial whether the judicial decision is pronounced by a tribunal
which is required to keep a written record of its decision, this nomenclature has
disappeared and it may be convenient to describe res judicata in its true and original
form as "cause of action estoppel." This has long been recognised as operating as a
complete bar if the necessary conditions are present. Within recent years the
principle has developed so as to extend to what is now described as "issue estoppel"
that is to say, where in a judicial decision between the same parties some issue
which was in controversy between the parties and was incidental to the main
decision has been decided, then that may create an estoppel per rem judicatam.
v.
In the above case, Lord Guest at p. 935 classified three basic requirements of issue
estoppel. They are:
(i) that the same question has been decided;
(ii) that the judicial decision said to create the estoppel was final; and
(iii) that the parties to the judicial decision or their privies were the same persons as
the parties to the proceedings in which the estoppel is raised or their privies.
The word "final" in requirement (ii), is understood to mean "final and conclusive
on the merits" of the cause and the decision upon which the issue estoppel arises
must itself be final in this sense. "It puts an end to and absolutely concludes that
particular action." (per Lord Herschell in Nouvion v. Freeman (15 App. Cas. 1, 9.).
For requirement (iii), the judgment should have been between the same parties or
their privies. According to Lord Guest, before a person can be a privy to a party
there must be community or privity of interest between them. His Lordship added
that it was essential that he who is later to be held estopped must have had some
kind of interest in the previous litigation or its subject matter. Spencer-Bower and
Turner on Res Judicata, 2nd Edn. p. 209 states that estoppel per rem judicatam
operates for, or against, not only the parties, but also those who are privy to them
in blood, title, or interest. See also Halsbury's Laws of England, 4th Edn. Vol. 16 p.
874 paras. 990-991.
Megarry V.C. in (Gleeson v. J. Wippell & Co. Ltd[1977] 1 WLR 510 at p. 515 laid the
test for privity of interest in the following words:
I do not say that one must be the alter ego of the other; but it does seem to me that,
having regard to the subject matter of the dispute there must be a sufficient degree
of identification between the two to make it just to hold that the decision to which
one was party should be binding in proceedings to which the other is party.
It is in that sense that I would regard the phrase "privity of interest".
The above test was applied by the English Court of Appeal in House of Spring
Gardens Ltd v. Waite [1991] 1 QB 241).
In light of the above pronouncement, have the 1st plaintiffs a privity of interest in
the Johor Bahru suit? In my judgment, they certainly have. The 1st plaintiffs are
unquestionably not a party to the Johor Bahru suit, whereas the 2nd plaintiff is a
party in both proceedings. The real question is the interest which the 1st plaintiffs
have in the subject matter of the Johor Bahru suit. The 1st plaintiffs were the
principal debtors under the bridging loan. The 2nd plaintiff was a director of the 1st
plaintiffs as well as one of the guarantors of the bridging loan upon which he was
sued in the Johor Bahru High Court. Clearly, the 1st plaintiffs must not only be
well aware of the proceedings, but also have special interest in the outcome of the
v.
said proceedings. Hence, there is a privity of interest between the 1st and 2nd
plaintiffs in the Johor Bahru suit.
Turning to issue estoppel in its wider sense, the locus classicus is Henderson v.
Henderson [1843] 3 Hare 100, 115, where Wigram V.C. states:
... where a given matter becomes the subject of litigation in, and of adjudication by,
a court of competent jurisdiction, the court requires the parties to that litigation to
bring forward their whole case, and will not (except under special circumstances)
permit the same parties to open the same subject of litigation in respect of matter
which might have been brought forward as part of the subject in contest, but which
was not brought forward, only because they have, from negligence, inadvertence,
or even accident, omitted part of their case.
The plea of res judicata applies, except in special cases, not only to points upon
which the court was actually required by the parties to form an opinion and
pronounce a judgment, but to every point which properly belonged to the subject
of litigation, and which the parties, exercising reasonable diligence, might have
brought forward at the time.
The Vice-Chancellor's phrase "every point which properly belonged to the subject
of litigation" was expanded in Greenhalgh v. Mallard [1947] 2 All ER 255, 257, by
Somervell LJ:
... res judicata for this purpose is not confined to the issues which the court is
actually asked to decide, but ... it covers issues or facts which are so clearly part of
the subject matter of the litigation and so clearly could have been raised that it
would be an abuse of the process of the court to allow a new proceeding to be
started in respect of them.
Wigram VC's pronouncement has been cited and followed in several subsequent
decisions of the highest authority, one of which was the Privy Council decision in
Yat Tung Investment Co. Ltd. v. Dao Heng Bank Ltd. [1975] AC 581, an appeal from
the Supreme Court of Hong Kong. Reaffirming the classic statement of Wigram
VC in Henderson v. Henderson, supra, the Board reiterated the principle in the
following words (p. 590):
But there was a wider sense in which the doctrine might be appealed to, so that it
became an abuse of process to raise in subsequent proceedings matters which could
and therefore should have been litigated in earlier proceedings.
In Brisbane City Council v. Attorney General for Queensland (PC) [1978] 3
WLR 299, the board stressed that the above was the true basis of the doctrine and
stressed that it ought only to be applied when the facts are such as to amount to an
abuse; otherwise there is a danger of a party being shut out from bringing forward a
genuine subject of litigation.
v.
For Malaysian authorities, see Asia Commercial Finance (M) Bhd. v. Kawal Teliti Sdn.
Bhd. [1995] 1 MLRA 611; [1995] 3 MLJ 189; [1995] 3 CLJ 783; [1995] 3 AMR
2559; Cheng Hang Guan & Ors. V. Perumahan Farlim (penang) Sdn. Bhd. & Ors. [1993]
3 MLRH 332; [1993] 3 MLJ 352; [1994] 1 CLJ 19; [1994] 1 AMR 201 .
In the present appeal, the question is whether the issues raised in the plaintiffs'
statement of claim in the present proceedings are matters which could and should
have been litigated in the earlier Johor Bahru suit. Let us now examine the
pleadings.
Clearly, paras. 6 to 14 of the plaintiffs' re-re-amended statement of claim contain
allegations of fact to support a tortious action of negligent misrepresentation
and/or breach of collateral warranty on the part of the 1st defendant. Except for
the elaborateness of the pleadings, which contain particulars of alleged negligence,
in my view, the issues pleaded in these paragraphs are, in substance, the same as
the matters raised by the 2nd plaintiff and his co-defendants in their affidavits in
the Johor Bahru suit. In their affidavits in reply against the 1st defendant's
application for summary judgment under O. 14 RHC 1980, both the 1st and 5th
defendants affirmed similar affidavits on behalf of themselves and the
co-defendants, who included the 2nd plaintiff here, deposing as follows: (1) That
sometime in September 1983, the 1st plaintiff as developers applied to the 1st
defendant for bridging finance and end-financing for housing development. (2)
That the said bridging loan of RM3.5 million was to be paid out from the
end-financing of RM26 million. (3) That the 1st plaintiff have sold some houses to
the purchasers who had applied for housing loan. (4) That if the end-financing was
released that would be sufficient to pay the amount due and owing by them to the
1st defendant. In the circumstances, the 1st defendant should be estopped from
claiming the sum owed by the 1st plaintiff from them as guarantors. (5) Lastly, that
the 1st defendant and/or their servants or agents had misrepresented to them about
the end-financing which the 1st defendant had agreed to release the loan granted to
the purchasers to the 1st plaintiffs and which would be utilised to repay the
bridging loan owed by the 1st plaintiffs to the 1st defendant. Hence, upon this
representation, it was contended that the defendants in the Johor Bahru suit
executed the second letter of guarantee, AB216-228. The Johor Bahru High Court
however found no triable defence had been raised and granted summary judgment
against the defendants, for which no appeal had been filed against the said
judgment.
In light of what I have stated above, I find the issues in the present proceedings had
actually been raised, though in an oblique way, by the 2nd plaintiff and his
co-defendants in their affidavits in reply to the 1st defendant's O. 14 application in
the Johor Bahru suit. With the benefit of hindsight, I see no difficulty for the
defendants, especially the 2nd plaintiff to instruct their solicitors to raise the issue
of negligent misrepresentation in the defence or plead as a counterclaim in the
v.
Johor Bahru suit. The 2nd plaintiff, as a director of the 1st plaintiffs and one of the
defendants in the Johor Bahru suit, was personally involved in the negotiations for
the banking facilities on behalf of the 1st plaintiffs. Hence, there was no excuse for
him not to give proper and adequate instructions to the solicitors regarding the
alleged representations made by Mr. Pang Wee Pat about the end-financing. After
all, these facts were available at the time of the Johor Bahru suit. No compelling
reason has been advanced to show that the issue could not have been pleaded in
the Johor Bahru suit except to contend that since the 1st plaintiffs were not a party
to the Johor Bahru suit, they were not estopped from bringing a separate action
against the defendants for negligent misrepresentation etc.
Based on the authorities I have referred to above, in my judgment, this is a clear
case where the subject matter of the plaintiffs' claim in the present proceedings
could and should have been pleaded in the defence in the Johor Bahru suit or
raised as a triable issue under O. 14 application to the Johor Bahru suit. In the
circumstances it would be an abuse of the process of the court to allow the 1st
plaintiffs to bring a new proceeding in respect of the same issue which should have
been litigated in the earlier Johor Bahru proceedings (Yat Tung Investment, supra, p.
590).
For the above reasons, I agree with the conclusion of the learned judge and the
appeal should be dismissed.
Cross-appeal
The cross-appeal by the 1st defendant is against the finding of the learned judge
that the plaintiffs have succeeded on their principal claim for negligent
misrepresentation and the alternative claim for breach of collateral warranty in
respect of the end-finance of RM26 million.
Negligent Misrepresentation
It will be noted that the plaintiffs' claim of negligent misrepresentation was
premised on an alleged oral promise of the 1st defendant's servant or agent to
procure the syndication of RM26 million as end-finance with the first drawdown to
be made in the first quarter of 1984. In this regard, her Ladyship seemed to have
relied on the oral testimony of the 2nd plaintiff, PW1 (now deceased) in the court
below. PW1 stated that he had several negotiations with one Mr. Pang Wee Pat,
the 1st defendant's southern regional manager, regarding the banking facilities to
finance the 1st plaintiffs' housing project prior to the acceptance of the facilities
under the agreement. In the course of their negotiations, it seemed Pang made
certain statements which led PW1 to believe that the syndication of the end-finance
would pose no problem and that the 1st defendant could secure it for the 1st
plaintiffs.
Based on PW1's evidence, the learned judge found as follows (pp. 77-78):
v.
PW1's oral testimony is that during the negotiations, Pang made 2 specific
representations
(1) that the 1st defendant would have no difficulty in procuring the syndicated end
finance and that its availability was a certainty.
(2) that the first drawdown of the end finance would come during the first quarter
of 1984,
and these representations assured and convinced PW1 that the project would be
successfully completed with such end finance.
It was following these negotiations that AB15 was tendered and approved by the
1st defendant with the granting of a bridging loan of RM3.5 million and a
syndicated loan of RM26 million through their letter AB17-22. It is this letter
which the plaintiffs rely to support their contention that the 1st defendant had
expressly or by necessary implication represented to the 1st plaintiff that a
syndicated end finance of RM26 million would be made available to the
purchasers of Taman Mewah.
She then concluded (p. 82):
It was these assurances that led PW1 to believe that the end finance was a certainty
as the 1st defendant would not encounter any difficulty in getting the necessary
participation from interested financial institutions and assured of the fact that
end-finance was in place, the 1st plaintiff started constructing the 325 units of
Phase 1 in January 1984 expecting them to be completed by the end of 1985.
Having found that Pang had given the assurance regarding the certainty of securing
the end-finance, her Ladyship next posed this question:
Was Pang negligent in making the representations as the essence of the tort of
misrepresentation is the negligent manner in which the statements were made. (p.
91).
Citing a passage from Charlesworth & Percy on Negligence, 8th Edn. p. 83, she
concluded that in the circumstances of the case she had no reason to doubt Pang's
statement and held the 1st defendant liable.
The finding of the learned judge on negligent misrepresentation stemmed from the
failure of the 1st defendant to secure for the 1st plaintiffs the syndication of the
end-finance of RM26 million. Based on PW1's evidence and the agreement
containing terms for the end-finance, her Ladyship concluded that the 1st
defendant did expressly or by necessary implication represent to the 1st plaintiffs
that a syndicated end-finance of RM26 million would be made available to the 1st
plaintiffs' purchasers.
Before this court, Encik Cecil Abraham submitted that the learned judge erred in
v.
law when interpreting the agreement by placing the 1st defendant under an
obligation to secure the syndication of the end-finance. The question of end-finance
should be considered purely on contractual standpoint. Counsel argued that under
the terms of the agreement, the 1st defendant as lead manager was only obliged to
try and secure the end-finance facility by getting other financial institutions to
participate in the syndication. The 1st defendant was not contractually obliged to
procure the end-financing except their commitment to provide RM5.0 million
toward the said loan. Moreover, the syndication of the loan was conditional upon
the 1st plaintiffs' compliance with the terms and conditions of the agreement which
the 1st plaintiffs had failed to comply. Counsel submitted except for the 1st
defendant's obligation to provide RM5.0 million which was readily available where
a guarantee agreement dated 16 November 1984 was executed by the 1st plaintiffs'
directors, the syndication exercise did not materialise because the 1st plaintiffs
could not fulfil some of the conditions of the agreement. This was compounded
when the said housing project came to a halt in January 1985 due to the buyers
losing interest in purchasing the houses. For the above reasons, counsel submitted
that the 1st defendant was not to blame for not securing the endfinance of RM26
million for the 1st plaintiffs.
The critical question here is whether the 1st defendant is legally obliged to secure
the syndication of the end-finance facility of RM26 million. It is of importance to
note that the agreement, AB17-22, stated that the management committee of the
1st defendant had approved the bridging loan of RM3.5 million and end-finance of
RM26 million subject to the terms and conditions provided therein. Thus, the
opening paragraph states:
Committee has approved your Bridging Loan of RM3.5 million and End-Finance
Therefore, since the granting of both loan facilities is subject to compliance of the
terms and conditions stipulated therein, it is trite that one has to look at Part (II) of
the agreement to see what are the terms for the granting and releasing of the
end-finance of RM26 million. Clearly under "For End- Finance", it is stipulated
that the 1st defendant will be the manager for the syndication of end-financing
facility of RM26 million to the 1st plaintiffs and the 1st defendant will also
participate in the syndicated loan. This means the end-finance facility will be
syndicated and the 1st defendant will act as the manager. It is also a term of the
agreement that the 1st defendant would be paid a management fee of 0.5% of total
loan amount syndicated. In my opinion, as the end-financing loan involves
syndication, the approval of the said facility must be subject to the compliance of
such terms as getting the participation of the financial institutions and the
execution of a participation agreement between the lead bank ie, the manager for
the syndication and each participating financial institution.
v.
It must be appreciated that syndication of loan has been a feature of domestic

financing in Malaysia for some time. Syndication is a term used to refer to a loan
whereby several lenders ie, banks and financial institutions combine in their efforts
to extend a loan to a borrower. Usually, the sums involved are too large a sum for
a single bank to grant the loan. So, the lead bank makes the necessary approaches
to other banks for participation in the syndication.
Gabriel's Legal Aspect of Syndicated Loan, Butterworth 1986 p. 115 explains in simple
language what is syndication:
By syndication is meant two basic activities; one where there is a group of banks
lending directly to the borrower, and the other where one bank lends directly or
agrees to lend to the borrower and then subsequently sells all or part of its interest
in the loan to other lenders. In both situations there is typically one main bank,
referred to as the lead bank or lead manager, or simply as the lead, which enters
into initial discussions with the borrower. Typically, upon successful discussions
the borrower would grant the lead bank the 'mandate' or authority to syndicate the
credit. The lead in turn commits to the borrower to syndicate the credit. Such
commitment is usually made on a 'best effort' or 'in principle' or 'fully underwritten'
basis.
The offer to the borrower may further be made 'subject to acceptable
documentation'.
Armed with this mandate the lead bank then makes the necessary approaches to
various banks to include them as principals to the envisaged loan agreement or as
indirect participants depending on the kind of syndication contemplated by the
borrower and the lead bank.
Taking cognisance of the above principle of loan syndication and on the true
construction of Part II For End-Finance in the agreement, in my opinion, in the
circumstances of this case, the approval of end-finance of RM26 million to the 1st
plaintiffs must be subject to, principally, the participation of the other financial
institutions in the syndication of the said end-finance. Since, as will be shown
shortly, the said syndication did not materialise and no participation agreement
was executed between the 1st defendant, as syndicate leader, and the other lenders,
it is wrong for the court to hold the 1st defendant liable to the 1st plaintiffs under
the agreement.
I am also of the view that the finding of the learned judge at p. 79 that the conduct
of the 1st defendant in preparing the placement memorandum and using it to invite
potential financial institutions to participate in the syndication of the end-finance
facility amounted to giving an unqualified commitment to the 1st plaintiffs to make
available the end-finance loan subject to the terms and conditions of the agreement
is misconceived. Clearly, the learned judge failed to appreciate the legal concept of
v.
loan syndication, especially the purpose of placement memorandum. It is trite that

in loan syndication, the preparation of placement memorandum is a condition
precedent to a commitment to lend by the participating financial institutions. A
passage from an article: Loan Syndication, The Placing Memorandum and its
implications for the Managing or Lead Bank by Mr. Anthony Lim Wee Teck in [1982]
2 MLJ lix is instructive. The learned writer stated:
In structuring and selling the loan, the lead bank with the assistance of the
borrower often prepares a placing or information memorandum summarizing the
financial condition of the borrower, the soundness of the collateral offered and the
structure, terms and conditions of the proposed loan, so that the prospective
participants to whom it is distributed can evaluate and form a decision as to the
proposal. This memorandum frequently contains claims and projections that are
wholly unsubstantiated. The lead bank, in an effort to limit its liability for these
representations, typically includes a disclaimer limiting its responsibility for
verifying that all facts presented are true and that all material facts have been
disclosed.
The lead bank also encourages each participant to conduct an independent credit
analysis of the borrower.
In the present case, DW1 testified that the 1st defendant prepared the placement
memorandum after consulting the 1st plaintiffs, who earlier agreed that the 1st
defendant would act as manager in the syndication of the endfinance of RM26
million. They then sent out the placement memorandum to eight financial
institutions operating in Kluang. Apparently, the 1st defendant, Public Finance
Bhd. and Malaysia Credit Finance Bhd. were interested to participate in the
syndication. Both the 1st defendant and Public Finance Bhd. had initially offered
to provide RM5.0 million and RM3.0 million respectively toward the syndication.
However, due to some disagreement regarding the security for the loan, Public
Finance Bhd. withdrew its offer. Hence, the entire syndication for the end-finance
of RM26 million never materialised.
It is not disputed that under the agreement, the 1st defendant would provide
RM5.0 million toward the end-finance facility. It seemed that the said facility was
readily available and the 1st plaintiffs' directors executed a guarantee agreement on
16 November 1984. However, the release of the aforesaid amount would be subject
to the conditions provided for under the said agreement. First, the payment of a
management fee of 0.5% to the 1st defendant upon the execution of the master
agreement. Secondly, money payable as end-financing money would only be
drawndown in proportion to work in progress to be certified by the project's
architect. In short, the project architect's certificates are a prerequisite for the
release of the end-finance. From the evidence of PW1 and DW1, I am satisfied the
management fee of 0.5% of the amount syndicated was never paid by the 1st
v.
plaintiffs. Nor was the master agreement signed. PW1 also testified that there was
no project architect's certificates available. In the result, no housing loan was given
out to the 1st plaintiffs' purchasers because the syndication of the sum of RM26
million for end-financing did not go through, not only because of lack of
participation by financial institutions, but also non-fulfilment of the conditions
under the agreement by the 1st plaintiffs. In the circumstances, no liability could be
attributed to the 1st defendant or their servant or agent in failing to secure the
end-finance facility of RM26 million.
For the above reasons, I am of opinion and respectfully hold that the learned judge
was wrong on her conclusion that the plaintiffs have proved their claim of
negligent misrepresentation against the 1st defendant because Pang had
represented to the 1st plaintiffs the availability of end-finance was a certainty and
the first drawdown would be made in the first quarter of 1984.
Collateral Warranty
With respect to the alternative cause of action for a breach of collateral warranty,
the trial judge held that Pang's oral representation constituted a collateral warranty
and therefore the plaintiffs had successfully made out their case against the 1st
defendant for a breach of the warranty.
Counsel submitted that the learned judge was wrong in fact and law to rely on
PW1's evidence regarding Pang's assurance as constituting a representation.
According to counsel, PW1 merely formed an impression after hearing what Pang
allegedly told him about the availability of the end-finance. The learned judge had
"elevated" the word "impression" to a "representation".
This is how the learned judge approached the issue (pp. 93-95):
To establish the presence of a collateral contract, the plaintiffs must show
(1) that there must be a representation which was intended by the defendants to be
relied upon.
(2) the representation induced the signing of the contract.
(3) the representation itself must amount to a warranty, collateral to the main
contract and existing side by side with it.
I have already made a finding that Pang did utter the statements which resulted in
AB17-22 being issued and accepted, the charge, AB31-47, executed in favour
of the 1st defendant and the guarantee, AB23-30, executed by the 2nd plaintiff
being the other security given for the bridging loan ...
As I have indicated above, Pang was the 1st defendant's Chief Manager, Southern
Region, and in that capacity had the authority to approve loan facilities on behalf
v.
of the 1st defendant. There is also the evidence of DW1, DW2 and DW4 that
where a developer buys land for the purpose of developing it, the availability of end
finance is an important consideration for him and usually the developer takes the
end finance to repay the bridging loan.
This aptly describes the situation the 1st plaintiff found themselves when PW1
approached Pang for a bridging loan and end finance and on being made aware of
the 1st plaintiff's purpose and intentions, Pang must be presumed to have intended
that whatever representations he made on the availability of end finance would be
relied upon by the 1st plaintiff.
At p. 98, she concluded:
For the reasons that I have given, the plaintiffs have also successfully made out a
case on the alternative plea that the defendants' oral representations constituted a
collateral warranty and that there had been a breach of it when no part of the
end-finance came from the 1st defendant.
Clearly, from the above grounds of decision, the finding of the learned judge was
based on the representation allegedly made by Pang to PW1. In this regard, her
Ladyship relied entirely on PW1's testimony. For the purpose of determining
whether Pang's alleged statements amount to a warranty enforceable at the suit of
the plaintiffs, I am guided by the test laid down by Lord Denning, M.R. in Dick
Bentley Productions Ltd. & Anor. v. Harold Smith (Motors) Ltd.[1965] 2 All ER 65, 67 a
test which had been followed and applied in subsequent cases. (See Tan Chong &
Sons, Motors v. Alan McKnight [1983] 1 MLJ 220 at p. 227). The test is:
Looking at the cases once more, as we have done so often, it seems to me that if a
representation is made in the course of dealings for a contract for the very purpose
of inducing the other party to act on it, and it actually induces him to act on it by
entering into the contract, that is prima facie ground for inferring that the
representation was intended as a warranty. It is not necessary to speak of it as
being collateral.
Suffice it that the representation was intended to be acted on and was in fact acted
on.
Applying the above test, the key issue here is whether PW1's evidence regarding
what he gathered from Pang's alleged statement during the negotiations for bank
loans to the 1st plaintiff amounts to representation. The critical passage of PW1's
evidence is found at pp. 125-6:
We discussed in details the financial package that the 1st plaintiff requested for the
development of Taman Mewah. The 1st plaintiff required the bridging loan and an
end-financing for the interested house buyers.
The Managers of Hong Leong Finance required information of the 1st plaintiff and
v.
these information includes the paid up capital of the company and all relevant
information about the company.
In the course of the discussions, Hong Leong was furnished with cash flow
projections and drawdown through my Secretary on or about 15.8.83.
The bridging loan was to be done by the Hong Leong alone and Mr. Pang
proposed to syndicate the end-financing. By syndication several banks would get
together and provide the money and Hong Leong Finance would take the lead of
this syndication.
The amount of the bridging loan was discussed for $4275 million and $21 million
for the end-financing for the house buyers.
In the course of the discussions in 1983, my impression was that Hong Leong
was a big financial institution and they gave me the impression that their
financing would pose no problem. There was no indication that they would fail.
Mr. Pang told me that the total amount including bridging loan and end-financing
was peanuts as far as Hong Leong was concerned. I accepted this as Hong Leong
is a big company both in Singapore and Malaysia.
It is a multilateral and multinational company.
This assurance as to the availability as to syndication was not qualified in any
way. [Emphasis added].
PW1 continued (at p. 129):
The drawdown is of utmost importance to the 1st plaintiff. Neither Mr. Pang nor
Mr. Chuang gave me any indication that there would be a problem to the 1st
drawdown on the first quarter of 1984. The 1st defendant did not give me the
impression that they would not be in a position to give the end financing.
They were very serious.
In addition to the above passages, I have examined the rest of PW1's evidence
closely with particular regard to the surrounding circumstances upon which Pang
was alleged to have made the statements concerning the end-finance which led the
learned judge to make the following finding (p. 81):
This is clear from the evidence of PW1 when he testified that he was assured by
Pang that an entity of the 1st defendant's financial standing would have no
difficulty in procuring the syndication of the end-finance and that the sum of
RM21 million, the amount that was then under consideration as the endfinance,
was "peanuts" as far as the 1st defendant were concerned and that the first
drawdown of the end-finance was available during the first quarter of 1984.
In my view, the learned judge misdirected herself in the appreciation of PW1's
v.
evidence. Nowhere in the evidence was it said that Pang had represented to him
about the 1st defendant securing the end-finance for the 1st plaintiff and the first
drawdown would be on the first quarter of 1984. What PW1 said was to the effect
that in the course of his discussions with Pang in 1983 regarding banking facility
for the 1st plaintiff's project, he formed an impression that the 1st defendant would
not have any problem in securing the end-finance. It would appear that this
impression is based on the following factors. First, he knew that the 1st defendant
was a big financial institution and as such their financing would pose no problem.
Secondly, he said Pang told him that the amount of the entire loan was peanuts as
far as the 1st defendant were concerned. He believed what Pang told him because
he knew that the 1st defendant was a big multilateral and multinational company
operating both in Malaysia and Singapore. On the drawdown of the loan, he said
Pang did not give any indication that there would be a problem for its first
drawdown to be made on the first quarter of 1984. Hence, he concluded:
The 1st defendant did not give me the impression that they would not be in a
position to give the end-financing.
They were very serious.
Based on the above evidence, I am in no doubt at all that Pang never represented
to PW1 about the certainty of the 1st defendant securing the endfinance for the 1st
plaintiff. In my view, the impression formed by PW1 does not amount to a
representation, nor can it be implied that a warranty had been given by Pang on
behalf of the 1st defendant.
In the circumstances, I hold that Pang never made any oral representation to PW1.
In law, in order to establish a collateral warranty, the plaintiff has to establish, inter
alia, that the relevant statement is promissory and not merely representational. This
test was enunciated by the highest court of Australia, ie, the High Court in J.J.
Savage & Sons Pty. Ltd. v. Blakney [1970] 119 CLR 435 at p. 442 and later followed
by the same court in Ross v. Allis-Chalmers Australia Pty. Ltd. [1981] 55 ALJR 8. The
brief facts of the case were these. The plaintiff claimed that he purchased a
harvester on the face of the promise made to him concerning its performance by
Mr. Preston, a servant of the defendant. He claimed further that the promise or
warranty was not fulfilled and that as a result he suffered loss for which he sought
damages. The context in which the actual statement was made was that the
plaintiff said that Preston (the area manager) had said to him that "as a contractor
he was able to get with his machine (the C2) in the vicinity of 100 acres a day in
very good going, and that (the plaintiff) could expect to be able to operate these
gleaners in top gear in very good going". The plaintiff had then made certain
calculations and he had put to Preston the assumption that he would get 120 to 130
acres a day and that Preston had then said that he (the plaintiff) "... may have been
a little bit optimistic on my (the plaintiff's) 110 to 120 acres". The plaintiff then said
v.
to Preston "Well bring it back for budgeting purposes to 100. Is that feasible?" and
that Preston had then said "my own experience with our machine is you should
budget on 90 acres per day". It is this last statement which is claimed to be a
collateral warranty. In his action in the Supreme Court of N.S.W., the plaintiff
failed to persuade the trial judge that the above statement amounted to a warranty.
He appealed to the Court of Appeal where he also failed. On further appeal to the
High Court of Australia, in dismissing the appeal, it held that in the context in
which the statement was made, the words used by Preston did not constitute a
warranty and amounted no more than a statement of Preston's opinion, based on
his own experience with his own machine. By reason of its character, it contained
no promissory element.
In his judgment, Aickin J stated (at p. 12):
It seems to me that the critical conversation as deposed to stopped short at the
point of representation and contained no promissory element.
For that representation to be converted into a promise there would have been
required at least some further question such as "Can you promise that?", and an
affirmative answer.
The distinction between a representation and a promise is clear enough in law but
it is one which laymen would probably find hard to understand, since it depends in
many cases on niceties of language in conversations recounted, often years
afterwards, by persons who would not have been conscious of the significance of
the particular words used at the time. In these circumstances the search for
"promissory language" becomes a somewhat unreal one and the distinction
between an inducement and a promise a very fine one.
However these are the criteria upon which this particular point depends and they
propound a test ...
Assuming for the moment that this court accept PW1's evidence on Pang's
statement regarding the availability of the end-finance, in my view, such statement
or representation cannot be promissory in nature. For the representation to be
converted into a promise, there ought to be clearer evidence from PW1 what Pang
actually said during the course of their discussion. What is in evidence is only
PW1's impression. Further, in the course of their discussions regarding the entire
bank loan, PW1 must have known or presumed to know that in banking practice,
end-finance facility requires the approval of all participating financial institutions.
At that point of time, it was inconceivable for PW1 or Pang to know which banks
or financial institutions would participate in the syndication. Moreover, PW1 must
know that syndication depended upon compliance with the conditions in Part (II)
of the agreement. In my view, in such circumstances, it is unlikely for Pang, being
an experienced banker to give an assurance or promise that the 1st defendant
v.
would secure the end-financing facility at whatever cost. After analysing PW1's
evidence on the issue, I am satisfied that his evidence regarding Pang's alleged
representation contains no promissory element and therefore does not amount to a
warranty.
Another legal point raised by Encik Abraham concerned the admissibility of Pang's
oral representation under proviso (b) of s. 92 of the Evidence Act (the Act). I note
from the appeal record that this point was never fully canvassed before the trial
judge, although the Federal Court judgment in Tan Swee Hoe Co. Ltd. V. Ali Hussain
Bros. [1978] 1 MLRH 352; [1980] 1 MLJ 89 was cited and briefly discussed in the
written submission. In view of my conclusion that Pang's statement does not
constitute a warranty, I think it unnecessary to deliberate and express an opinion
without the benefit of hearing counsel on this important point of law. Perhaps,
there may be an occasion in the near future for this point to be raised again and
fully argued. Nonetheless, it is still an important point of law because of a conflict
of judicial opinion regarding s. 92 of the Act and its exceptions. In Tan Swee Hoe,
Raja Azlan Shah CJ (Malaya) (as His Majesty then was) seemed to rely on English
precedents on parole evidence to support the proposition that an oral promise
given at the time of contracting which induces a party to enter into the contract,
overrides the main written agreement. His Majesty continued (at p. 18):
This device of collateral contract does not offend the extrinsic evidence rule
because the oral promise is not imported into the main agreement.
Instead it constitutes a separate contract which exists side by side with the main
agreement.
In Tan Chong & Sons Motor Co. v. Alan McKnight, the Federal Court had also to
consider the admissibility of pre-contract statements under s. 92 of the Act.
Unfortunately, Tan Swee Hoe was never referred to the court. But Salleh Abas FJ
(as he then was) in dealing with the issue, observed (at p. 229):
The primary purpose of proving the pre-contractual statements ... was not to
contradict, vary, add or subtract the terms of the Order, but to prove the existence
of a warranty, a separate contractual promise, although such proof resulted in a
conflict between the warranty and the terms of the contract ... Such proof is
obviously allowed by the provisos (b) and (c) and illustrations (d), (g) and (b) of
section 92.
However, in Tindok Besar Estate Sdn. Bhd. V. Tinjar Co. [1979] 1 MLRA 81; [1979] 2
MLJ 229 , the Federal Court took a different approach by applying the strict
language of the section. At p. 233, Chang Min Tat FJ observed:
I think and I say so with respect, the fundamental mistake made by the learned
judge is to conclude simply and without qualification that section 92 applies only
to a case where all the terms of the agreement have been reduced to writing. But
v.
that is not what section 92 says.

It merely says "where the terms ..." and by referring back to section 91, it means
where the terms of a contract have been reduced to writing, as in this particular
agreement they had been, the contract could only be proved by the document itself,
and it is not open to the respondent to seek to introduce and the judge to admit
evidence that would, inter alia, add new terms to it.
However section 92 allows, so far as it concerns this particular case, evidence in
proviso (b) of "any separate oral agreement, as to any matter on which a document
is silent and which is not inconsistent with its terms" and in proviso (c) of "any
separate oral agreement constituting a condition precedent to the attaching of any
obligation under any such contract ..." The provisos qualify but do not eliminate
the main provisions of the section, so that unless the additional evidence sought to
be adduced falls within the scope of any of the provisos, it should not be allowed to
be introduced as it would be to contradict, vary, add to or subtract from the terms
of the agrement.
Having stated the above, it is my conclusion that her Ladyship had committed an
error of law in her finding that Pang's statement amounted to a warranty and the
evidence established a breach of it.
Conclusion
For the above reasons the plaintiffs' appeal should be dismissed and the defendants'
cross-appeal be allowed with costs. Deposit for the appeal be paid to the
defendants to account for taxed costs.
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KLUANG WOOD PRODUCTS SDN BHD & ANOR

Supreme Court, Kuala Lumpur

Total End-Financing facilities to be syndicated by HLFB is M$26 million. HLFB

loan of M$3.5 million and an end-finance of M$26 million available. Paragraph 7

counterclaim in the charge action (Originating Summons No. 210/85 in Johor

would be wrong to enable a plaintiff to select the frailest of a number of possible

plaintiffs and defendants respectively.

iv) Peter Gan Siew Chong

(II) For End-Finance

It must be appreciated that syndication of loan has been a feature of domestic

loan syndication, especially the purpose of placement memorandum. It is trite that

that is not what section 92 says.

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