Scribd Logo
Upload

Welcome to Scribd!

  • 711 views

    Malayan Banking BHD V Foo See Moi

    Uploaded by

    zmbl
    The issue in this case is whether evidence of negotiations that occurred after an agreement was reached is admissible in court. The parties engaged in negotiations via letters marked "without prejudice" to settle a debt owed by the defendant. An agreement was reached based on the terms in the bank's counterproposal. However, the final installment was not paid, so the bank rescinded the agreement. The court found that the lower court judge did not properly exercise discretion in dismissing the bank's application. Evidence of negotiations that result in a concluded settlement agreement are admissible in court. Since an agreement was reached based on the negotiations in this case, the letters are admissible.

    Copyright:

    © All Rights Reserved
    Download as DOCX, PDF, TXT or read online from Scribd

    Malayan Banking BHD V Foo See Moi

    Uploaded by

    zmbl
    711 views3 pages
    The issue in this case is whether evidence of negotiations that occurred after an agreement was reached is admissible in court. The parties engaged in negotiations via letters marked "without prejudice" to settle a debt owed by the defendant. An agreement was reached based on the terms in the bank's counterproposal. However, the final installment was not paid, so the bank rescinded the agreement. The court found that the lower court judge did not properly exercise discretion in dismissing the bank's application. Evidence of negotiations that result in a concluded settlement agreement are admissible in court. Since an agreement was reached based on the negotiations in this case, the letters are admissible.

    Original Description:

    Case Review

    Original Title

    Malayan Banking Bhd v Foo See Moi

    Copyright

    © © All Rights Reserved

    Available Formats

    DOCX, PDF, TXT or read online from Scribd

    Did you find this document useful?

    Is this content inappropriate?

    The issue in this case is whether evidence of negotiations that occurred after an agreement was reached is admissible in court. The parties engaged in negotiations via letters marked "without prejudice" to settle a debt owed by the defendant. An agreement was reached based on the terms in the bank's counterproposal. However, the final installment was not paid, so the bank rescinded the agreement. The court found that the lower court judge did not properly exercise discretion in dismissing the bank's application. Evidence of negotiations that result in a concluded settlement agreement are admissible in court. Since an agreement was reached based on the negotiations in this case, the letters are admissible.

    Copyright:

    © All Rights Reserved
    Download as DOCX, PDF, TXT or read online from Scribd
    Download as docx, pdf, or txt
    711 views3 pages

    Malayan Banking BHD V Foo See Moi

    Uploaded by

    zmbl
    The issue in this case is whether evidence of negotiations that occurred after an agreement was reached is admissible in court. The parties engaged in negotiations via letters marked "without prejudice" to settle a debt owed by the defendant. An agreement was reached based on the terms in the bank's counterproposal. However, the final installment was not paid, so the bank rescinded the agreement. The court found that the lower court judge did not properly exercise discretion in dismissing the bank's application. Evidence of negotiations that result in a concluded settlement agreement are admissible in court. Since an agreement was reached based on the negotiations in this case, the letters are admissible.

    Copyright:

    © All Rights Reserved
    Download as DOCX, PDF, TXT or read online from Scribd
    Download as docx, pdf, or txt
    of 3

    ISSUE

    The issue in this case is whether any evidence of negotiations became admissible
    when action is taken by the parties after the conclusion of an agreement.
    FACTS
    In this case, plaintiffs (Malayan Banking Berhad) issued out a writ for money owed
    by the defendants on 3 over-draft accounts and together with interest. On 17 July
    1970, plaintiff signed a final judgement in default of defence. Bank later on 30
    December 1978 applied for in order to levy execution since six years had elapsed
    from the date of judgment. The banks solicitor later applied for the notes of the
    arguments taken by the judge and the ground of his decision; however after
    despairing in his effort to obtain both, he filed an appeal record without them 17
    months later.
    A copy of the judges note argument was available two days before the dated
    hearing and it lacks the reasons of the dismissal of the banks application for leave. It
    is essential for the Federal Court to know contain of the notes.
    Defendant contended that the debt had been fully paid with the sum of $750,000.
    Plaintiff denied stating it is a blatant lie. Plaintiff failed to defend the claim and also at
    the same having considerable properties which the judgement could be performed
    and hes also in view at the time he was bound contractually to sell properties which
    formed part the of a housing developed by him, thus defendant had to prevent the
    execution of the judgment.
    The best solution for the defendant was to enter into negotiations with the bank for
    time to make payment and the payment may be made by way of instalments.
    Negotiations between them were put down in several letters, prudently expressed to
    be without prejudice.
    In the first letter, defendant made a proposal a sum in full and final settlement agreed
    at the amount of $850,000.00, an aura of $700,000.00 to be paid to the bank
    forthwith and upon payment the bank shall discharge all securities excepts the lot
    belongings to our clients. Besides, defendants proposed the balance sum of

    $150,000.00 to be paid on or before 30 September 1975 and costs to be paid by our


    client.
    The first letter contained proposals and in reply the Bank made a counter proposal
    without prejudice. The letter contained main proposal by the defendant for payment
    of $850,000.00 by way of full settlement was therefore acceptable though the
    amount due at that time had increased to $961,175.25 but other terms as to costs
    and the result of delay or default were added.
    The next letter from defendant to the bank is on the matter of mediation of the issue
    by way of appointing committee from Chinese Chamber of Commerce Kota Bharu
    and it was not made by way of without prejudice. It can be said made by way of
    deliberate omission and for good reason. Thus, in conclusion an agreement had
    been reached, and it was on the terms of the Banks counterproposals.
    The amount of $850,000 was agreed to be paid in two instalments which was
    $800,000.00 had been paid and the balance of $50,000.00 must be paid in second
    settlement remained unsettled. Defendant contended that he needed time to gather
    the money from the purchasers of his lands and houses he developed. However, he
    had met with some delay and encountered with some difficulties as several actions
    taken against him by purchasers.
    Defendant wrote to the Bank on 29 January 1976 stated that he is disappointed by
    the action taken by the Bank demanded the amount of $50,000 regardless of the
    explanation given for the delay.
    In reply, the bank gave him time instead of rescinding the contract. On 10 May 1978,
    the bank rescinded the agreement and demanded the amount of $50,000.00
    together with interest. Clearly, the bank had exercised it equitable discretion and
    applied to the court. However, the court had dismissed the application for leave.
    Plaintiff appeal.
    JUGDMENT
    Firstly, Chan Min Tatt FJJ, Salleh Abbas FJJ and Abdul Hamid FJJ commented on
    the failure by the judge in lower court in dismissing the application for leave. No
    contention on the ground of interest was made and court cited the case of Yourell v

    Hibernian Bank1 on the practice of the bankers in debiting interest. The judges also
    agreed that the issue of limitation was not vital here.
    Now, the important question under evidence law is with regards to the admissibility
    of the letters for negotiations between plaintiff and defendant. Here, the letters
    without prejudice contained negotiations between the parties were inadmissible. This
    is because not to restraint but to expand the scope for negotiations and thus the
    solution will be easily obtained between both parties. Nevertheless, if the
    negotiations between parties lead to a settlement, the evidence of negotiations will
    be admissible.
    Judges held that on the facts the learned judge had not judicially exercised his
    discretion to dismiss the application and on the matter of payment of compound
    interest on an overdrawn account was a usual and perfectly legitimate mode of
    dealing between banker and customer and this fact was irrelevant as a ground for
    the refusal of the leave sought. Thus, the court allows the appeal with costs.
    The issue here is with regard of the admissibility of without prejudice evidence in the
    court. Section 23 of Evidence act stated that in civil cases no admission is relevant if
    is made either upon express condition that evidence of it is not to be given or under
    circumstances from the which the court can infer that the parties agreed together
    that evidence of it should not be given. This case illustrated the notable exceptions
    under section 23 with regards where the issue is whether the without prejudice
    communications had resulted in a concluded compromise settlement. Here, it is
    stated in this case, if the negotiations conducted without prejudice lead to a
    settlement then the letters will become admissible in evidence.
    In conclusion, the court will consider the surrounding circumstances and the
    relevancy of the evidence before admitting its admissibility as it is not clear whether
    the evidence is really made without prejudice.

    [1918] AC 372

    You might also like

    pFad - Phonifier reborn

    Pfad - The Proxy pFad of © 2024 Garber Painting. All rights reserved.

    Note: This service is not intended for secure transactions such as banking, social media, email, or purchasing. Use at your own risk. We assume no liability whatsoever for broken pages.


    Alternative Proxies:

    Alternative Proxy

    pFad Proxy

    pFad v3 Proxy

    pFad v4 Proxy