1. ) MASHUDAN BIN KAMAR 2. ) Kharil Bin Sulaiman (Menuntut Sebagai Pengamanah Persekutuan Guru-guru Melayu Johor, Cawangan Batu Pahat) 3. ) HAJI SANUSI BIN HAJI LAMBING 4. ) HJ ABDUL KADIR BIN HJ MUHAMMAD 5. ) ZAMILAH BINTI HAJI EKHWAN 6. )

1. ) MASHUDAN BIN KAMAR 2. ) Kharil Bin Sulaiman (Menuntut Sebagai Pengamanah Persekutuan Guru-guru Melayu Johor, Cawangan Batu Pahat) 3. ) HAJI SANUSI BIN HAJI LAMBING 4. ) HJ ABDUL KADIR BIN HJ MUHAMMAD 5. ) ZAMILAH BINTI HAJI EKHWAN 6. )

The Court held the bank was liable for wrongfully releasing RM2,340,000 because the Power of Attorney was fraudulent and Ex D.2 was not proved to have been issued or authenticated by PGMJ; the respondent bore the burden of proving the representation and genuineness of Ex D.2 and failed to do so; the High Court misdirected in admitting Ex D.2 and in shifting the onus to appellants; appeal allowed in respect of the claims for recovery (prayers (a) and (b)) with interest and costs; the respondent’s cross-appeal against third parties was struck out as incompetent (majority).

Citation
J-02(NCvC)(W)-2088-11/2021 (Mahkamah Rayuan)
Parties
Appellant: MASHUDAN BIN KAMAR; Appellant: KHARIL BIN SULAIMAN; Appellant: HAJI SANUSI BIN HAJI LAMBING; Appellant: HJ ABDUL KADIR BIN HJ MUHAMMAD; Appellant: ZAMILAH BINTI HAJI EKHWAN; Appellant: HAJI EKHWAN BIN MOHD OTHMAN @ DAIRY; Respondent: BANK ISLAM MALAYSIA BERHAD; Third Party: OMAR BIN KASSIM; Third Party: ZUL AZAM BIN MD DAHLAN; Third Party: SABARUDDIN BIN ALI
Court
NCvC
Jurisdiction
Malaysia
Judgment Date
1 March 2023
Case Number
J-02(NCvC)(W)-2088-11/2021 (Mahkamah Rayuan)
Procedural Posture
Civil Appeal From High Court (auction Surplus / Third Party Proceedings) / Appeal Hearing and Judgment at Court of Appeal (final Disposition on Appeal and Cross Appeal Preliminary Objection)
Outcome
Appeal allowed in part; High Court judgment set aside in respect of liability and relief for appellants; cross-appeal struck out by majority on preliminary objection
Legal Topics
Auction Surplus Under National Land Code, Validity and Effect of Power of Attorney, Admissibility and Proof of Documentary Evidence, Burden and Onus of Proof, Bank Negligence in Disbursement, Third Party Indemnity Claims, Competence of Cross Appeal
Source Language
Malay/English
Property Law Land Law Trusts and Trustees Evidence Civil Procedure Professional Negligence Auction Surplus Under National Land Code Validity and Effect of Power of Attorney +5 more

Case Brief

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Parties

MASHUDAN BIN KAMAR

Appellant

KHARIL BIN SULAIMAN

Appellant

HAJI SANUSI BIN HAJI LAMBING

Appellant

HJ ABDUL KADIR BIN HJ MUHAMMAD

Appellant

ZAMILAH BINTI HAJI EKHWAN

Appellant

HAJI EKHWAN BIN MOHD OTHMAN @ DAIRY

Appellant

BANK ISLAM MALAYSIA BERHAD

Respondent

OMAR BIN KASSIM

Third Party

ZUL AZAM BIN MD DAHLAN

Third Party

SABARUDDIN BIN ALI

Third Party

Procedural Posture

Civil Appeal From High Court (auction Surplus / Third Party Proceedings) / Appeal Hearing and Judgment at Court of Appeal (final Disposition on Appeal and Cross Appeal Preliminary Objection)

Legal Issues

  1. 1 Whether the respondent bank was liable for wrongfully releasing RM2,340,000 to Omar
  2. 2 Whether the Power of Attorney and the Impugned Letter (Ex D.2) were authentic and binding on PGMJ
  3. 3 Whether the High Court Judge erred in admitting and attaching weight to Ex D.2 and in allocating the burden of proof to the appellants

Ratio Decidendi

The Court held the bank was liable for wrongfully releasing RM2,340,000 because the Power of Attorney was fraudulent and Ex D.2 was not proved to have been issued or authenticated by PGMJ; the respondent bore the burden of proving the representation and genuineness of Ex D.2 and failed to do so; the High Court misdirected in admitting Ex D.2 and in shifting the onus to appellants; appeal allowed in respect of the claims for recovery (prayers (a) and (b)) with interest and costs; the respondent’s cross-appeal against third parties was struck out as incompetent (majority).

Court Disposition

Appeal allowed in part; High Court judgment set aside in respect of liability and relief for appellants; cross-appeal struck out by majority on preliminary objection

Orders

  • Judgment entered for the Appellants as prayed in prayers (a) and (b) of paragraph 21 of the Amended Statement of Claim with interest at 5% per annum from date of writ to realisation
  • Order of the High Court set aside insofar as it dismissed the Plaintiffs' claim