KUNCI SEMANGAT SDN BHD [ Company No.: 365006-T ] 1. ) THOMAS VARKKI A/L M. V. VARKKI [ Identity Card No.: 570305105933 ] 2. ) AMARJIT SINGH A/L KARTAR SINGH [ Identity Card No.: 540214105447 ]

KUNCI SEMANGAT SDN BHD [ Company No.: 365006-T ] 1. ) THOMAS VARKKI A/L M. V. VARKKI [ Identity Card No.: 570305105933 ] 2. ) AMARJIT SINGH A/L KARTAR SINGH [ Identity Card No.: 540214105447 ]

Defendant's late reliance on illegality was a radical departure from its pleaded case and amounted to trial by ambush; because illegality was not pleaded, put to or proven at trial and there was no evidence of a system or course of conduct amounting to estate agency practice, Matad remains authoritative that a one-off isolated transaction does not trigger the statutory prohibition; therefore the plaintiffs' claim was not barred and the appeal is dismissed.

Citation
W-02(NCvC)(W)-260-02/2021 (Mahkamah Rayuan)
Parties
Appellant/defendant: Kunci Semangat Sdn Bhd; Respondent/plaintiff 1: Thomas Varkki A/L M. V. Varkki; Respondent/plaintiff 2: Amarjit Singh A/L Kartar Singh
Court
NCvC
Jurisdiction
Malaysia
Judgment Date
14 March 2022
Case Number
W-02(NCvC)(W)-260-02/2021 (Mahkamah Rayuan)
Procedural Posture
Civil Appeal / Hearing and Judgment at Court of Appeal on Appeal From High Court After Full Trial
Outcome
Appeal dismissed
Legal Topics
Illegality Defence, Estate Agents Licensing, Finder's Fee, Pleading Requirements (order 18 R.8 Roc), Precedent (matad)
Source Language
Malay/English
Contract Law Property Law Statutory Interpretation Professional Regulation Civil Procedure Illegality Defence Estate Agents Licensing Finder's Fee +2 more

Case Brief

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Parties

Kunci Semangat Sdn Bhd

Appellant/defendant

Thomas Varkki A/L M. V. Varkki

Respondent/plaintiff 1

Amarjit Singh A/L Kartar Singh

Respondent/plaintiff 2

Procedural Posture

Civil Appeal / Hearing and Judgment at Court of Appeal on Appeal From High Court After Full Trial

Legal Issues

  1. 1 Whether plaintiffs' claim for a finder's fee is barred by the Valuers, Appraisers, Estate Agents and Property Managers Act 1981 (s.22C(1)(d) read with s.22B(1A))
  2. 2 Whether illegality must be specifically pleaded under Order 18 r.8 Rules of Court 2012 or can be taken cognizance of sua sponte
  3. 3 Whether a one-off or isolated transaction constitutes 'estate agency practice' after the 2011 and 2017 amendments

Ratio Decidendi

Defendant's late reliance on illegality was a radical departure from its pleaded case and amounted to trial by ambush; because illegality was not pleaded, put to or proven at trial and there was no evidence of a system or course of conduct amounting to estate agency practice, Matad remains authoritative that a one-off isolated transaction does not trigger the statutory prohibition; therefore the plaintiffs' claim was not barred and the appeal is dismissed.

Court Disposition

Appeal dismissed

Orders

  • Appeal dismissed with costs of RM25,000.00 (subject to allocatur)