1. KHALEK BIN AWANG 2. ZAKHIRAH @ ZAMARIAH BTE MOHD ZABIDI KOPERASI PERUMAHAN KLUANG BERHAD

1. KHALEK BIN AWANG 2. ZAKHIRAH @ ZAMARIAH BTE MOHD ZABIDI KOPERASI PERUMAHAN KLUANG BERHAD

On the balance of probabilities the cumulative circumstantial evidence established that the second and third defendants (partners of Tetuan Khalek Awang & Associates) were complicit in DSN's scheme and made fraudulent misrepresentations and negligent statements; those torts caused the plaintiff's foreseeable losses including the sum later paid to Pravest, and therefore the defendants are liable to compensate the plaintiff for proven losses; other claims (broker commissions, aggravated and exemplary damages) were not proven or were rightly refused.

Citation
C-02(NCVC)(W)-554-03/2019 & C-02(NCVC)(W)-555-03/2019 (Mahkamah Rayuan)
Parties
Plaintiff; Appellant in C 02(ncvc)(w) 555 03/2019; Respondent in C 02(ncvc)(w) 554 03/2019: Koperasi Perumahan Kluang Berhad; Second Defendant; Appellant in C 02(ncvc)(w) 554 03/2019; Respondent in C 02(ncvc)(w) 555 03/2019: Khalek bin Awang; Third Defendant; Appellant in C 02(ncvc)(w) 554 03/2019; Respondent in C 02(ncvc)(w) 555 03/2019: Zakhirah @ Zamariah bte Mohd Zabidi; First Defendant (dsn): Mohd Nazrul Izad bin Mohd Arshad
Court
NCVC
Jurisdiction
Malaysia
Judgment Date
12 March 2021
Case Number
C-02(NCVC)(W)-554-03/2019 & C-02(NCVC)(W)-555-03/2019 (Mahkamah Rayuan)
Procedural Posture
Civil Appeal / Court of Appeal Judgment on Appeals From High Court After Full Trial
Outcome
Appeal of the defendants dismissed; appeal of the plaintiff allowed in part.
Legal Topics
Standard of Proof for Civil Fraud, Circumstantial Evidence for Fraud, Duty of Care for Negligent Misstatement (hedley Byrne), Causation — 'but For' Test, Aggravated and Exemplary Damages, Illegality of Commission Under Valuers, Appraisers and Estate Agents Act 1981 S30(3)
Source Language
Malay/English
Fraud Conspiracy to Defraud Negligence Professional Negligence Tort Contract Damages Civil Procedure +7 more

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Parties

Koperasi Perumahan Kluang Berhad

Plaintiff; Appellant in C 02(ncvc)(w) 555 03/2019; Respondent in C 02(ncvc)(w) 554 03/2019

Khalek bin Awang

Second Defendant; Appellant in C 02(ncvc)(w) 554 03/2019; Respondent in C 02(ncvc)(w) 555 03/2019

Zakhirah @ Zamariah bte Mohd Zabidi

Third Defendant; Appellant in C 02(ncvc)(w) 554 03/2019; Respondent in C 02(ncvc)(w) 555 03/2019

Mohd Nazrul Izad bin Mohd Arshad

First Defendant (dsn)

Procedural Posture

Civil Appeal / Court of Appeal Judgment on Appeals From High Court After Full Trial

Legal Issues

  1. 1 Whether the solicitors (second and third defendants) conspired with DSN to commit fraud and made fraudulent misrepresentations
  2. 2 Whether the solicitors owed a duty of care to the plaintiff and were negligent (negligent misstatement)
  3. 3 Whether the plaintiff proved causation for losses including the sum later paid to Pravest

Ratio Decidendi

On the balance of probabilities the cumulative circumstantial evidence established that the second and third defendants (partners of Tetuan Khalek Awang & Associates) were complicit in DSN's scheme and made fraudulent misrepresentations and negligent statements; those torts caused the plaintiff's foreseeable losses including the sum later paid to Pravest, and therefore the defendants are liable to compensate the plaintiff for proven losses; other claims (broker commissions, aggravated and exemplary damages) were not proven or were rightly refused.

Court Disposition

Appeal of the defendants dismissed; appeal of the plaintiff allowed in part.

Orders

  • Defendants liable to pay sums previously awarded by the High Court (as affirmed) including RM500000.00 deposited with Tetuan Khalek Awang & Associates
  • Defendants liable to pay RM305223.45 (payments to contractor) and RM113995.00 (legal expenses) and costs awarded at trial of RM30000.00