The Transfer Application and the Forgotten Case
In my early years of practice, I acted for Uncle Chan, a close friend of my uncle, my mom’s brother. He always came around our popo’s house for a visit during Chinese New Year when we were kids. When he did, he always gave us a nice ang pow every year; nice refers to what is in the packet, not the packet. Who cares about the packet? He was one of the more generous visitors to the house. We were assured of at least a tenner from him every year. Those were the days I still got coins as ang pows and duit raya. I miss those days of easy ang pow and duit raya. All I had to do then was don our cultural gear, greet an adult respectfully, wish them Selamat Hari Raya/Gong Xi Fa Cai, then adults gave me packets of money. Unlike now. As an adult, doing all that is not enough. If I wanted to be given packets of money I first have to be influential, powerful, and rich before another adult wants to do that for me. Naturally, after several Chinese New Years of plying me with ang pows, as any proper corrupt official would, I genuinely formed a good impression of Uncle Chan. I didn’t see him after my grandmother moved from Pahang to stay with my family. It was sometime in my third or fourth year I received a call from my uncle who still lived in Pahang. He asked if I could help him, or rather ‘Remember Uncle Chan?’ ‘Of course, I do. He always gave us nice ang pows during Chinese New Year.’ ‘Yah. Yah. Okay. Anyway, he received something called a ‘Saman’? There are a few pages to it. He doesn’t know what to do. Is it serious?’ ‘Yes, uncle. That means he is being sued. If you look at the front page, is there a company mentioned anywhere next to the word plaintiff?’ ‘Yah. Yah. ABC Bank Bhd. He took a loan from them to buy a lorry.’ ‘I am guessing he didn’t pay the instalments and now they are suing him for the whole amount?’ ‘Yah. He said his business had gone very bad. He had trouble paying the instalments. So he gave the lorry away to some guy who promised to take over the instalments.’ ‘Aiyoh, uncle, it’s a con lah. The guy sure won’t pay it! He basically got the lorry for free. The banks will go after Uncle Chan, not the guy he gave it to.’ That arrangement is known as ‘sambung bayar‘. It means ‘continue paying’ i.e. carry on the hire purchase under the hirer’s name and continue paying the instalments while using the vehicle. This is an illegal arrangement and a breach of contract but is often done because it is an easy way out for the ignorant. ‘But the lorry is with that guy what? Get it from him lah!’ ‘Uncle, in law, we don’t follow who has the lorry; we follow whose name is written on the agreement with the bank for that lorry. And it’s Uncle Chan’s. That’s why he is being sued now. That other fella obviously didn’t pay the instalments. The bank also doesn’t know about that fella.’ ‘Hiya. He ah! Told him to check with you first before he gave it away.’ ‘Never mind lah, uncle. It’s done. Can you fax me the whole thing? I’ll see what I could do.’ The summons came together with the statement of claim. It was your stock standard hire purchase statement of claim – the kind you simply changed the names, dates, vehicle, amounts, instalments, and repayment period, the kind that adhered closely to the Hire Purchase Act 1967 requirements. At the time, my father’s firm did work for two finance companies. They did hire purchases and leasing, both within and without the Act because the Act doesn’t cover every kind of vehicle or equipment, just certain ones. I had my fair share of hire purchase and leasing claims and defences because of that. And from that, I could tell Uncle Chan’s case was a stinker. He had no defence to the claim. The only thing I could do for him was a transfer application to send the case to Kuantan. Now if you practiced in Kuala Lumpur and Shah Alam courts circa 1998 – 2007, you will know the administration of both were notoriously inefficient, indifferent, cumbersome, tedious; the latter courts were several degrees more so than the former. A case transferred out of Kuala Lumpur or Shah Alam to a different state often went missing in transit. I oversaw at least five or six transferred file reconstructions over that period. File reconstructions happen when the court irretrievably loses its file. It had to rely on the cause papers furnished by the lawyers from their respective files to ‘reconstruct’ the court file. I never understood how back then how that could happen. I have added it to my list of mysteries of life. These are things lawyers from 2008 onwards know nothing about and amen to that. I filed the application immediately after entering an appearance. When I filed the transfer application, I was counting on the inefficiencies of the system not to hold back the tide, but to keep Uncle Chan dry for just a spell longer. He was eventually going to get the full brunt of the downpour when the bankruptcy axe came down on him. And it is not as if the transfer application was without merit… Puan Hakim, I contend the application has merit. Uncle Chan lives in Kuantan. The Plaintiff has a branch in Kuantan. That’s where Uncle Chan signed the contract. Their officers who handled the transaction still live and work in Kuantan. Uncle Chan got the keys to the lorry in Kuantan. He drove the lorry between Kuantan and Dungun. Puan Hakim, Uncle Chan hasn’t been to Kuala Lumpur in the last fifteen years. But the claim was filed in
