介绍生意拿佣金/顾问费, 受法律承认？[2018] MLJU 102

1. 被告是海鲜供应商。被告的儿子找原告的帮忙，请原告穿针引线将被告公司引进TESCO，让他们供应海产给Tesco。被告的儿子承诺，如果推荐成功，打开TESCO的黄金路，他们会付给原告5%与TESCO交易的总销售额，为原告的‘顾问费’。
2. 经过一个4个人的电话会议，原告+原告的经理+被告+被告的儿子(DW7)，DW7发了一封被告的信件/合约书，确认被告委任原告为他们的代表，接洽TESCO，商量提供海产，并同意付给原告5%与TESCO交易的总销售额，作为‘顾问费’，为他的酬劳。
3. 被告的版本却宅然不同。被告表示这5%的顾问费/佣金其实只是为了逃税的障眼法。而且他完全不懂英文，所有并不知道信件/合约书的实际内容。
4. 原告和被告提出的案情，明显是两个宅然不同的版本，最后法官觉得原告的案情版本比较可信。
5. 虽说被告的版本是说其5%的顾问费/佣金其实只是逃税的障眼法，但是那封信件/合约书很清楚列明是顾问费/佣金，被告也没有提交任何证据，证明“逃税”的说词。
6. 被告的信件/合约是唯一一个提呈入法庭的文件，此文件也没有被挑战伪造/不真实/不存在，没有被挑战被告代表/证人(DW7)在被告的信件/合约的签名是被冒签。当双方有签文字合约，如有后期的口头协议，口头协议与此合约内容相对/有出入，另一方在法庭否认口头协议的存在，此口头协议的真伪将被质疑。
7. 而且被告的信件/合约是一份商业合约。被告没有提出证据，证明被告代表(DW7)是个单纯生意人，单纯到不知道签下合约的重要性/后果。被告只是提出被告代表(DW7)是不会英文，不明白被告的信件/合约的内容。被告没有解释，DW7身为一个生意人，为何他并没有在签那份被告的信件/合约前，先咨询法律意见。而且当DW7在法庭供证的时候，高庭法官观察到DW7是能读和理解英文的。
8. 法庭最终裁定被告需要向原告支付上述的佣金费。

详细的案情和判决，请阅读以下的英文版文章。

Introduction:

1. This is an appeal by the Appellants/Defendants against the decision of the High Court in which the learned Judge sustained the Respondent/Plaintiff’s claim for RM19,000,000.00 for services rendered to the Appellants in securing contracts of supply of fishes to Tesco which is a one of the biggest supermarkets in this country.
2. We heard the appeal and after giving due consideration to the evidence adduced in the trial Court and submissions by respective counsel, we dismissed the appeal. We now give our grounds for that decision.

Background facts:

3. The Respondent had sued the Appellants under a brokerage contract for services rendered in securing supply of seafood on behalf of the Appellants to Tesco Stores (M) Sdn Bhd (Tesco). As to how this arrangement eventuated, there was not much of a common ground in that both had their version of events which were in stark contrast. 有关此协议如何达成佣金协议，双方各自有自己的版本故事。

Respondent’s case

4. The Respondent’s version of events was this. Sometime in early February 2004, the Respondent met up with one Ng Tee Keat (DW7) who is the son of the 1st Appellant. DW7 had sought the help of the Respondent to secure a contract of supply of seafood with Tesco in return of a consultancy fees of 5% of the total sales to Tesco.
5. Pursuant to that request, the Respondent met up with one Miss Patricia of Tesco and gave her quotations from the 1st Appellant for the supply of seafood. Those quotations were not accepted by Tesco. However, in December 2004, the Respondent came to be aware that Tesco was still looking for supply of seafood and contacted DW7 to enquire whether the 1st Appellant was still interested. DW7 confirmed in the affirmative and upon which the Respondent contacted one Lee Yan Seng (PW3) who was then the marketing manager of Tesco. PW3 then introduced the Respondent and DW7 to one Ng Shek Chan (DW5) who was the manager of the Fresh and Frozen Food Department of Tesco. DW5 after several meetings requested certain information on the 1st Appellant which was then supplied.
6. The Respondent then sought confirmation from the 1st Appellant regarding his consultancy fees of 5% of the total sales of seafood to Tesco. This resulted in a letter dated 6.2.2005 signed by DW7 on behalf of the 1st Appellant. A copy of that letter is produced herein:
7. The circumstance in which the letter was obtained was pursuant to a telephone conference between the Respondent and 1st Appellant in the presence of Ng Tee Huat (DW3), who is also a son of the 1st Appellant, DW7 and the Plaintiff’s manager, Vasantha Kumari a/p K Erusan @ Krishnan (PW5). The telephone conference emanated from DW7 who made the telephone call from the office of the Respondent. Of crucial importance was the appointment by the 1st Appellant of DW7 to be the person having his authority to sign the letter of appointment of the Respondent on his behalf.
8. The Respondent’s cause of action against the 1st Appellant was simply premised on the letter dated 6.2.2005. As for the 2nd Appellant, it was set up from the Respondent’s point of view as a sham to defraud the Respondent to avoid the payment of the 5% consultancy fees. 原告的诉讼根基是基于被告发给原告的信件，注明被告同意给原告5%销售给Tesco的销售量作为原告的顾问费/佣金。

Appellant’s case

9. From the 1st Appellant’s stand point, it was a complete denial by him in that he had never seen the letter dated 6.2.2005 and had never appointed DW7 to sign such a letter.
10. As for DW7, his evidence was such that he had never approached the Respondent in regard to the supply of fish to Tesco. DW7 and the Respondent were only in partnership and had set up a company known as Esteem Farm Sdn Bhd on 19.5.2003 to rear fish.
11. What had happened was that the Respondent had suggested to DW7 to use the supply of fish by the 1st Appellant to Tesco as a way of generating income for Esteem Farm Sdn Bhd. Pursuant to that suggestion, several meetings were held between one Lee Yan Sang (PW3) from Tesco and other relevant personalities. This eventuated in a supply of fish arrangement between Tesco and the 1st Appellant starting from April 2005 until middle of 2006.
12. DW7 denied having been involved in the telephone conference with the 1st Appellant at the office of the Respondent. As for the letter dated 6.2.2005 DW7 had signed it for the tax purposes and was drafted by the Respondent. DW7 further testified that he did not understand English and hence did not understand the contents of the aforesaid letter.
13. As for the alleged 5% consultancy fees due to the Respondent, there was no such arrangement. He was informed by the Respondent and PW3 that 3% of the sale price of the fish supply to Tesco was meant to be for one Simon Ng (DW5) with 2% to be paid to Esteem Farm Sdn Bhd.
14. As for the status of the 2nd Appellant, it was an independent entity to the 1st Appellant according to Ng Tee Huat (DW3), another son of the 1st Appellant. As far as the DW3 was concerned, the 1st Appellant was involved with wholesale business to local fishmongers while the 2nd Appellant conducts fish trading to established companies. It was denied that the 2nd Appellant was set up to avoid the 1st Appellant’s obligation under the letter dated 6.2.2005.
15. Premised on the above, the 1st Appellant had counterclaimed against the Respondent for the return of the 5% of the total sale price of seafood to Tesco which had been paid to the Respondent from1.1.2005 to 24.12.2005 in the sum of RM421,706.32, a sum of RM23,000.00 being excess payment of transportation costs and general damages.

High Court‘s Decision

16. The learned Judge in substance found that the version of events of the Respondent to be more credible to that of the version of the Appellants. Having made that decision, the learned Judge found that the letter dated 6.2.2005 had created a binding contract between the Respondent and the 1st Appellant. 原告和被告提出的案情，确是两个宅然不同的版本，最后法官觉得原告的案情版本比较可信。
17. The letter dated 6.2.2005 was a product of the telephone conference between the Respondent and Appellant and witnessed by DW7, DW3 and PW5. It was the contention of the Appellants that no such telephone conversation had taken place.
18. Both the 1st Appellant and DW7 flatly denied such conversation while DW3 testified that at the material time he was in Dubai and tendered his passport as proof of his assertion. The learned Judge found as a fact that DW3’s contention was not proven as it had been neutralized by the evidence of PW7 who was an immigration officer and had testified that the records from the Immigration Department did not show that DW3 was in fact out of the country between 22.10.2004 – 2.4.2005. Further the exit endorsement of the United Arab Emirates on DW3’s passport was suspicious as the samples of the United Arab Emirates immigration’s exit endorsement was different to that shown in the DW3’s passport. 原告招唤移民厅供证。根据出入境记录，移民厅官员说第三被告证人在相关的日期是没有离开马来西亚的记录。而且在第三被告证人的护照里的United Arab Emirates移民厅出境盖章和正式的United Arab Emirates移民厅出境盖章有出入，所以很可疑。
19. The learned Judge also rejected the flat denial of the 1st Appellant and DW7.
20. As for the plea of illegality of the 5% payment as a tax evasion exercise, the learned Judge rejected the same for the simple reason that on the face of the letter dated 6.2.2005, there was nothing to indicate the allegation that it was a so called under counter payment of 3% to one Simon Ng (DW5). 虽说被告的版本是说其5%的顾问费/佣金其实只是逃税的障眼法，但是出了那封承认给原告5%的顾问费/佣金的证据外，被告没有提出任何证据证明他们的“逃税”说词。
21. In regard to the status of the 2nd Appellant as facade for the 1st Appellant to evade its liability under the letter dated 6.2.2005, the learned Judge found that as a fact premised on the 2nd Appellant’s incorporation was effected some 3 months after the commencement of this suit and the admission of DW3 that the 2nd Appellant was formed for the purpose of supplying fish products to Tesco.法庭觉得其第二被告的成立，就是让第一被告逃脱该信件/协议书/合约的责任。这是因为第二被告在原告起诉第一被告后的3个月才成立的。第三被告证人也承认，其第二被告的成立，就是提供鱼产给Tesco的。

Our Grounds of Decision

22. Before us learned counsel for the Appellant had correctly listed five issues for our consideration and they were as follows:
    • Whether there is a contract between the 1st Appellant and the Respondent (‘The privity issue’);
    • If there is a contract between the 1st Appellant and the Respondent, whether the contract is valid (‘The illegality issue’);
    • If the contract is valid, whether the contract has been terminated (‘The perpetuity issue’);
    • If the contract has not been terminated, whether the Respondent is entitled to payment of RM19million (‘The effective cause issue’); and
    • Whether the Court was entitled to lift the corporate veil of between the Appellants (‘The corporate veil issue’).
23. In our deliberation, we started with the letter dated 6.2.2005 as this was the only documentary evidence before the trial Court and most importantly there is no allegation that the letter was a fabrication or that DW7’s signature on the letter was a forgery. The case of the Respondent, so to speak, was on the front foot from the start of the case and hence incumbent on the Appellants to neutralize it. The question then was whether the Appellants had done so such that the letter dated 6.2.2005 had been rendered a useless piece of evidence. It is trite law or for use of a better phrase common sense that in adjudicating or resolving any dispute of facts that where there was a written document, any oral evidence to the contrary must be treated with some suspicion. 被告的信件/合约是唯一一个提呈入法庭的文件，此文件也没有被挑战伪造/不真实/不存在，没有被挑战被告代表/证人(DW7)在被告的信件/合约的签名是被冒签。当双有签文字合约，如有后期的口头协议，口头协议与此合约内容相对/有出入，另一方在法庭否认口头协议的存在，此口头协议的真伪将被质疑。
24. In the context of this case, the letter dated 6.2.2005 was a commercial document in a form of an agreement made between two parties well versed with the intricacy of the business world. There was no evidence that DW7 is a naive business person in that he had no idea of the significance of a written document which had set out the business relationship between the Respondent and the parties which DW7 represented. The only evidence of was that he did not understand English and was not aware of the meaning of the contents of the letter. Even taking that evidence to its highest, it did not explain the fact that why DW7, being someone who is a businessman and represented his father, the 1st Appellant did not see fit to seek advice, legal or otherwise before he signed that document. In any event, the learned Judge had remarked in his ground that from his observation of DW7 in Court, DW7 can read and understand the English language. 被告的信件/合约是一份商业合约。被告没有提出证据，证明被告代表(DW7)是个单纯生意人，单纯到不知道签下合约的重要性/后果。被告只是提出被告代表(DW7)是不会英文，不明白被告的信件/合约的内容。被告没有解释，DW7身为一个生意人，为何他并没有在签那份被告的信件/合约前，先咨询法律意见。DW7在法庭供证的时候，高庭法官观察到DW7是能读和理解英文的。
25. DW7’s evidence relating as to how the 5% amount was to be shared with DW5 in our view confirmed that the existence of the 5% fees in the letter dated 6.2.2005 was not a figment of anyone’s imagination. It thus also confirmed the existence and genuineness of the same.
26. The aforesaid evidence hence made by the allegation of the 1st Appellant that he knew nothing about the letter dated 6.2.2005 was bereft of any substance. Actually the 1st Appellant had in his testimony confirmed that DW7 was his representative when dealing with Tesco. This was his evidence:

AGK: I put to you that Ng Tee Keat is your agent and representative of the first Defendant in all matters relating to Tesco.

NCT: Saya Setuju, Yang Arif..

AGK: I put to you that you also gave the authority to Ng Tee Keat to deal with Tesco on behalf of the first Defendant.

NCT: Ya, Yang Arif.

27. Another principle of law is what was stated by this Court in Guan Teik Sdn Bhd v Hj Mohd Noor Hj Yakob & Ors [2000] 4 CLJ 324 at p330: “In cases where conflicting evidence are presented before a court, it is the duty of the court not only to weigh such evidence on a balance of probabilities but it is also encumbent upon the court to look at all the surrounding factors and to weigh and evaluate contemporaneous documents that may tend to establish the truth or otherwise of a given fact. … We say that this evaluation exercise is most crucial for it must be remembered that the respondents were testifying to events that happened eighteen years ago whilst the contemporaneous documents speak of matters then existing at the time such documents, were issued.” 如果有两个版本的故事/案情，原告和被告的版本故事各自不同。
28. Premised on the above we answer issue 1 as set out by the learned counsel for the Appellant in the affirmative.

Issue 2

29. We agree with the manner in which the learned Judge had dealt with the illegality plea. Mere allegations of “under counter” payment in respect of the 5% fees to various persons cannot amount to evidence. As pointed by the learned Judge, DW5 who was supposed to receive 3% of the 5% commission had denied that he had asked for the under-counter payment. Accordingly, we answered issue 2 in the affirmative.

Issue 3 and 4

30. As for issue 3 and 4 relating to the perpetual nature of the contract between the Respondent and 1st Appellant, we agreed with learned counsel for the Respondent that the contract had been terminated on 25.10.2015 when Tesco and the 2nd Defendant had mutually terminated their relationship. The Respondent’s entitlement was simply 5% of the total sale to Tesco by the 1st Appellant. If there were no more relationship between the 1st Appellant and Tesco, there was no more entitlement by the Respondent. That we said was the long and short of the contents of the letter dated 6.2.2005.
31. As for the amount awarded by the learned Judge, firstly as pointed by counsel for the Respondent there was no appeal as to the quantum of the award by the trial Court. Secondly we thought that was perfectly correct as the evidence of PW2 being the financial controller of Tesco and in our view an independent witness was not challenged seriously and for good reason. Tesco的财务总监(PW2)在法庭供证，确认他们和被告的销售量，PW2是案件里的独立证人(不是案件里的纠纷者或者有利益关系)，PW2的口供并没有在法庭被严厉盘问+挑战。

Issue 5

32. We fully agreed with the learned Judge’s finding that this was a proper case to lift the corporate veil as there was a blatant attempt by the 1st Appellant to avoid its obligation to the Respondent. The law is crystal clear. The court has the power to lift the corporate veil of any corporation if it had been established that there are elements of fraud in the conducts of parties. Here the learned judge, in our view, had made correct findings of fact that the 2nd Appellant was set up as an engine of fraud to undermine the Respondent’s contractual rights.

Conclusion

33. For reasons stated above, the appeal was dismissed with costs in the sum of RM20,000.00 subject to allocator fees.

Source:

Ng Chin Tai (berniaga dengan cara dan gaya Lean She Fishery) & Anor v Ananda Kumar a/l Krishnan [2018] MLJU 102. Court of Appeal Putrajaya. David Wong, Prasad Abraham and Hasnah Hashim JJCA.

*Court of Appeal’s decision was affirmed by Federal Court in Ng Chin Tai (trading in the name and style of Lean Seh Fishery) & Anor v Ananda Kumar a/l Krishnan [2020] 1 MLJ 16.

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