PUTRAJAYA (Aug 13): A businesswoman who had seen her suit and damages against CTOS Data Systems Sdn Bhd (CDS), a subsidiary of CTOS Digital Bhd (KL:CTOS), being overturned by the Court of Appeal last month has filed an application for leave to appeal to the Federal Court.
A losing party in civil cases has 30 days to file a notice of appeal in any case. For such a case to approach the apex court, leave (permission) has to be gained first before the merits of the appeal can be heard on new issues of law.
CDS’ counsel, Ashok Kandiah, when contacted by The Edge on Tuesday, confirmed that a motion for leave to appeal had been filed to the Federal Court by the businesswoman, Suriati Mohd Yusoff, 43, who runs a resort on an island off Terengganu.
At the Kuala Lumpur High Court in March, judge Datuk Akhtar Tahir ruled that Suriati was to receive RM200,000 in damages and another RM50,000 in costs from CTOS Data System for not providing an accurate credit rating and that CTOS Data System was not legally empowered to formulate credit scores.
Akhtar ruled that CDS had overstepped its statutory functions under the Credit Reporting Agencies Act 2010 (CRA) in formulating a credit score for Suriati, when it was merely a database of credit information for its subscribers.
“In the court’s view, there is no provision in the [CRA] empowering the defendant (CTOS Data Systems) to formulate a credit score or create its own criteria or percentage to formulate a credit score.
“The defendant is just supposed to be a repository of the credit information to which the subscribers have access,” Akhtar had ruled.
High court judge erred in granting damages
However, on July 9, a three-member Court of Appeal bench unanimously overturned Akhtar’s decision and ruled that the High Court was wrong in granting the damages sought by Suriati.
In also dismissing Suriati’s cross-appeal for claims of defamation, the appellate bench also dismissed the negligence and breach of statutory duty claim for which the businesswoman was successful at the High Court.
Judge Datuk Azmi Arifin, who wrote the unanimous decision at the Court of Appeal on Aug 9 that was released on Monday (Aug 12), said negligence and breach of statutory duty were not pleaded by Suriati in her statement of claim and, hence, she was not entitled to make the claim.
Azmi further said Suriati had also admitted during cross-examination at the High Court that there was no evidence of any rejection by banks of facilities having been applied.
“We (the bench) find that there was no breach of any statutory duty at all. There was also no connection proven between the rejection of her car loan application and the contents of the credit report. Furthermore, Suriati had also admitted in cross-examination that there was no evidence of any rejection by banks of facilities having been applied,” Azmi said.
“In the first place, based on the circumstances of this case, to our mind the credit reporting agency does not owe a duty of care to the plaintiff (Suriati) as a customer as defined in the Credit Reporting Agencies Act 2010,” he added.
Azmi further said that from the relevant documentary evidence before the bench and submissions made, the bench unanimously found there was misdirection on the part of the learned High Court judge that warrants appellate intervention.
“We find merits in the appeal and we are satisfied that the trial judge had been plainly wrong in his analysis of the evidence and in his failure to appreciate the evidence before him that led to his erroneous finding of liability (on CTOS Data Systems). The appeal is allowed and the order of the High Court is set aside,” he said.
Azmi sat with Datuk Lee Swee Seng, who led the bench. The other judge in the unanimous decision was Datuk Azimah Omar.
In a bourse filing last month, CTOS said the COA had also unanimously ruled that credit reporting agencies do not owe a duty of care under common law and that they may formulate and publish credit scores as part of their business of credit reporting under the provisions of the CRA.
Suriati was said to have owed an internet company RM2,186, resulting in the negative credit score in the CTOS data and subsequently she lodged a complaint with the Malaysian Communication and Multimedia Commission that resulted in her appeal to the debt being reduced to RM450 and the internet company informing CTOS later to update her status.
She had, however, failed in her suit at the sessions court against the internet company and as there was no appeal by her, the appellate court ruled that she was bound by res judicata (a case that had already been decided and cannot be relitigated) for her defamation appeal to be dismissed by the COA.