What Malaysians can do if they get tricked into entering a business agreementabout 2 years ago Jonathan Khaw
THIS IS THE PERSONAL OPINION OF THE COLUMNIST. The opinions, beliefs and viewpoints expressed by the author do not necessarily reflect ASKLEGAL's position on the issue, nor should it be reflective of the regular content published by ASKLEGAL. We do not make any claims on the legal accuracy of this article.
by Jonathan Khaw | firstname.lastname@example.org | CHERN & CO.
Recently, the most common complaints we received from our clients involved the buying and selling of personal protection equipment (“PPE”). We have seen businesses fraudulently claiming that they have ready stock of gloves or misrepresenting themselves to be acting for major gloves companies. Hence, they supposedly have direct access to these items.
Once payment is made, the Buyers would often realize that the Seller never has ready stocks of these PPEs in the first place, and some even could never meet order requirements in time, due to the global shortages of PPE items.
Hence, in this article, we will focus on one of the legal options you may have against Company Directors for fraudulent misrepresentation.
Lifting the ‘Corporate Veil’
A Seller company is often a private limited company and a separate legal entity. At the same time, it is true that the Company, under normal circumstances, is solely liable for all the acts done and the debts incurred, and not the Directors. However, we wish to point out that you can and should seek legal redress to make these Directors personally liable for your loss and damages if these Directors have made fraudulent representation to you in their capacity to induce you to pay his Company.
We call this the lifting of the Company’s ‘corporate veil’. By doing so, we aim to hold the Directors personally accountable for their fraudulent acts, notwithstanding the transaction is between 2 companies. The rationale is that nobody should be allowed to rely on the protection of a corporate veil (i.e. Sdn Bhd.), as a device or façade to conceal their own wrongdoings.
Test for fraudulent misrepresentation
In a nutshell, fraudulent misrepresentation is the most serious, where a false statement is dishonestly made to you upon which you rely and depend. As a consequence of relying on that (untrue or misleading) statement, you suffer damages.
Now suppose you wish to sue someone, or a business, for fraudulent misrepresentation. You should understand the elements you must prove in Court, so that you are aware of the evidence you need to prepare in advance to introduce at trial to satisfy those legal requirements and, hence, their required burden of proof.
If you are seeking to demonstrate that you relied on a misrepresentation made by others – a vital step in raising claims of fraudulent misrepresentation – generally have to prove the following:-
- There must be a representation of fact by words or by conduct, and mere silence is not enough;
- The representation that was made to you must be made with the knowledge that it is false, ie, it must be wilfully false or at least made in the absence of any genuine belief that it is true or recklessly (ie, without caring whether his representation is true or false);
- The representation must be made with the intention that it should be acted upon by you, in the manner which resulted in damage to you;
- You must prove that you have acted upon the false statements; and
- You must prove that you have sustained damage by so doing.
There are some practical points and best-practice tips arising from the law of misrepresentation generally, of which all businesses should be aware.
- Having a Sale and Purchase Agreement (SPA) drafted out is highly recommended. At the very least, an SPA should act a good checklist, providing a clear path for the transaction.
- Always carry out due diligence on potential suppliers or vendors. But as we have experienced, it has its sets of challenges.
- Always ensure you keep complete and accurate records of the trail of correspondence.
- Take legal advice immediately if you think you may have suffered loss having relied on a misrepresentation.
- Keep in mind that a misrepresentation that does not have a material effect on the agreement does not give rise to a legal action.
- Finally, it may be helpful to remind ourselves of the age-old adage that ‘if something seems too good to be true, it probably is’.
Whether you've been sued for fraudulent misrepresentation or believe you have entered into a contract under false pretences, the stakes are relatively high for your business and interest.
Jonathan Khaw is the principal lawyer of CHERN & CO. – A Commercial law firm specializing in all aspects of corporate & commercial laws. Jonathan was a foreign consultant at Tilleke & Gibbins, a leading international law firm in Bangkok, Thailand before setting up CHERN & CO. He can be reached at email@example.com.