The Defendant’s Case. [10] The Defendant position is that notwithstanding the terms of the Notice of Assignment and the “acceptance and willingness to pay unconditionally the full amount stated when due and payable...” its liability under the assignment could not exceed its liability to Sure and to the extent that it did not sell the Drink supplied pursuant to the Consignment Agreement (save for 36 cases), a debt or liability to Sure in the amount of $1,657,000.00 did not arise and could not therefore be the subject of a cause of action by the Claimant based on an assignment. The Law relating to assignments of debt [11] Xxxxxxx, The Law of Contract 12 Ed para 15-001 describes an assignment as follows: “This is a transaction between the person entitled to the benefit of the contract (called the creditor or the assignor) and the third party (called the assignee) as a result of which the assignee becomes entitled to xxx the person liable under the contract (called the debtor). The debtor is not a party to the transaction and his consent is not necessary for its validity.” [12] A chose in action can also be assigned. A chose in action describes all personal rights of property which can only be claimed or enforced by action and not by taking physical possession. According to Cheshire, Fifoot and Furmston’s Law of Contract 15th Ed. at pg 643; “It is a term that comprises a large number of proprietary rights, such as debts, shares, negotiable instruments, rights under a trust, legacies, policies of insurance, bills of lading, patents, copyrights and rights of action arising out of tort or breach of contract.” [13] There is no prescribed formulation for an equitable assignment. Where there is a contract between the owner of a chose in action and another person which shows a clear intention that such person is to have the benefit of the chose, there is without more a sufficient equitable assignment. [14] Section 49(f) of the Judicature (Supreme Court) Act provides for a statutory assignment as follows: “Any absolute assignment by writing under the hand of the assignor (not purporting to be by way of charge only) of any debt or other legal thing in action, of which express notice in writing has been given to the debtor, trustee, or other person from whom the assignor would have been entitled to receive or claim such debt or thing in action, shall be and be deemed to have been effectual in law (subject to all equities which would have been entitled to priority over the right of the assign...
The Defendant’s Case. The Defendant’s testimony 110 The Defendant was the first witness for his defence. His AEIC was lengthy resulting in his cross-examination taking three days. Most of the facts set out in his AEIC have been canvassed with the Plaintiff’s witnesses and it is not necessary to repeat them. 111 In his AEIC, the Defendant set out the genesis of the SH Resort which he had started constructing in the early 1990s, with the Co-Gen Facility being built between 1997 and 1999. The Defendant deposed at length as to all the financial institutions and financial instruments that he and/or his companies, including the SH Group, dealt with from the time of or before construction of the SH Resort commenced. 112 Throughout his AEIC, the Defendant repeatedly referred to the Common Expectation that PHSB had that it would own the Subject Land because it had expended RM155m to develop the Co-Gen Facility situated thereon. This issue will be dealt with in greater detail below (see [135]–[138]). 113 The Defendant referred to numerous banking and other documentation which were generated before GSH and the Plaintiff came into the picture. Amongst such documents was a letter from Bank Islam to KPMG dated 12 March 2012 (after PHSB had gone into liquidation on 11 January 2012) giving notice that under Bank Islam’s Debenture (see [84] above), Bank Islam as a secured lender had an interest over the assets of PHSB including the Subject Land. Bank Islam had given a similar notice on the same day to MTB. Both these letters were copied to, inter alia, Maybank and SHGCC. 114 The US$24m loan (referred to in [84] above) to PHSB had been secured by the Defendant’s personal guarantee as well as the pledge of his 51% shares in SH Holdings. 115 During cross-examination, the Defendant admitted that by 2012, the SH Group was in serious financial difficulties and was owing loan stockholders almost RM2 billion. In some cases, the loans extended to his companies, including PHSB, were secured by the Defendant’s personal guarantees and/or the pledge of his shares in various companies including SH Holdings. In fact, a winding up petition was ultimately filed against SH Holdings. More will be said of the winding up proceedings below (at [134]). 116 Consequently from early 2013, the Defendant desperately looked for investors to save SH Group as well as himself from financial ruin. He found his white knight in GSH, which then worked through the Plaintiff. The Plaintiff’s investment of RM700m into the Xxxxxx Tar...
The Defendant’s Case. 46 The Defendant’s case was that it had duly advised Xxxxx of the risks involved in the purchase of the Property, both in writing and verbally, and it had discharged its duty to Xxxxx as her solicitor. It submitted that any alleged loss or damage suffered by Xxxxx was a result of her own doing and should be borne by Xxxxx herself. 47 In response to Xxxxx’s claim that her command and understanding of English was poor, the Defendant pointed out that she was a savvy businesswoman who had purchased other properties in Singapore before, set up her own businesses and dealt with European companies. Having met and married her Caucasian (Australian) husband in 2006, she must at least have been able to understand simple English.104 In any case, Xxxxx had advised her verbally in Mandarin and was satisfied that she fully comprehended what he 104 NE 20/3/2018 at p 11 and 14. communicated to her.105 48 With regard to the 1% option fee, the Defendant claimed that it could not be held liable for it, because Xxxxx had chosen to obtain the OTP when the Defendant had not even entered the picture yet.106 49 The Defendant’s account was that on 5 January 2007, Xxxxx had pointed out and explained to Xxxxx the effect of Clause 11, and that she would not be able to get a refund of the 4% deposit given to exercise the OTP in the event that the Property was affected by road reserves.107 Xxxxx enquired about how to conduct searches on the Property and Xxxxx suggested that she could go to CrimsonLogic. Since Xxxxx confirmed that she did not want to appoint Xxxxx as her solicitor in relation to her intended purchase of the Property, and would only appoint him to act in respect of the Jalan Xxxxxx Xxxxxx property purchase, Xxxxx advised her to appoint lawyers to act for her with regard to the Property as soon as possible.108 50 Subsequently, Xxxxx met Xxxxx on 22 January 2007 when Xxxxx showed him the four requisition replies.109 Xxxxx informed her that her searches were not comprehensive and that she should appoint a law firm to conduct the searches on the Property for her (supra [9]). In particular, Xxxxx informed her she should obtain the road line plan because it would reveal whether or not the Property was affected by road lines and this was extremely important. He told her he was unaware of where to obtain the road line plan as these searches were 105 Xxxxx’x affidavit at para 6. 106 Defendant’s closing submissions at para 39. 107 Xxxxx’x AEIC at para 11. 108 Xxxxx’x AEIC at para ...
The Defendant’s Case. 24. In her submissions, counsel for the defendant relied on the following case:
The Defendant’s Case. 15) There is no dispute as to the publication of the offending article in the Gleaner as alleged by the Claimant. The Defendant however denies that the natural and ordinary meaning of the words complained of by the Claimant is as suggested by the Claimant. It is also refuted that by innuendo the words would bear the meaning argued for by the Claimant. It was accepted that the there was the exchange of correspondence referred to above. Further, it was submitted by counsel for the Defendant that after the letter of March 8, 2004 from the Gleaner’s Legal Advisor to the Claimant’s counsel, a letter from the Claimant’s then counsel, dated March 24, 2004 which enclosed a draft apology. The letter demanded that the draft apology with the suggested headline intact, be published on page 1 of the Daily Gleaner.
The Defendant’s Case. 11 The defendant’s case is that Xx Xx did not have its authority to seek loans from anyone let alone to enter into any loan agreements on its behalf with anyone.14 The defendant is therefore not bound by any loan agreements which Xx Xx may have purported to enter into with the plaintiff on the defendant’s behalf.
The Defendant’s Case. 15. The Defendants have advanced the following arguments in support of their claim to protection of the Act:
The Defendant’s Case. 0.Xx is Readymix’s case that there was an implied term of the contract which entitled them to terminate with immediate effect if the claimant carried pitrun past Readymix’s Checker without first stopping, presenting and having the same verified. Readymix asserted in their pleadings that on the 26th March 2015, 10th April 2015 and 27th April 20151 the claimant’s trucks exited the quarry after the removal of pitrun without being checked and without being issued any verification documents. This breach of procedure amounted to a “Theft of [Readymix’s] pitrun supply”, an expressed reason for termination. Therefore, despite the Notice of Termination’s failure to connote this reason for termination, they were nonetheless entitled to terminate Xxxxxxxx’x contract.
The Defendant’s Case. Having failed to file a defence, the defendants were unable to adduce any evidence in defence of the claim against them. According to CPR Part 12.11, “unless he obtains an order for judgment to be set aside, the only matters on which a defendant against whom a default judgment has been entered may be heard are costs ...” There was, therefore, no case put forward by the defendants in defence of this claim.
The Defendant’s Case. [30] On the other hand, it was the defendant’s case that the term “net of income tax” was understood to mean that taxes would be deducted from the claimant’s salary and that was what was done with the claimant’s approval. [31] By letter dated 4 December 2013, the defendant wrote the claimant stating inter alia that -
