PUTRAJAYA (Nov 6): The Federal Court dismissed the appeal by a businesswoman, who was challenging the Court of Appeal decision which had overturned a High Court decision that she was entitled to RM200,000 damages from CTOS Data Systems Sdn Bhd (CDS), a subsidiary of CTOS Digital Bhd (KL:CTOS).

A three-member apex court bench, led by Court of Appeal president Tan Sri Abang Iskandar Abang Hashim, denied leave (permission) for Suriati Mohd Yusoff to appeal based on five questions of law posed to the court for determination.

Abang Iskandar, who sat with Federal Court judges Datuk Zabariah Mohd Yusof and Datuk Vazeer Alam Mydin Meera, were unanimous in their decision that the questions posed did not pass the threshold set under Section 96 of the Courts of Judicature Act for the appeal to be heard on its merits.

“The bench is unanimous in its decision as we find that if leave is granted, the appeal may have no prospect of success. Accordingly, we dismiss the leave application,” the top judge said.

The bench ordered Suriati to pay costs of RM30,000 to CDS. At the Federal Court, it is not automatic in civil cases for appeals to be directly heard, as they have to pass the threshold based on the facts and questions of law for determination.

Suriati’s counsel Nizam Bashir had argued earlier that the questions posed were of public importance for determination by the apex court as they had not been decided before.

The lawyer said his client had questioned the credit score that affected her reputation, and hence, she was seeking her defamation claims.

“As she had won in the High Court, only [for it] to be overturned by the Court of Appeal, my client is entitled to have the merits of her case be decided by the court as the questions posed are of public importance,” he said.

Nizam argued that the Court of Appeal had erred in its decision in relying on his client's Webe internet debt of RM2,186, whereas CTOS had been negligent in its credit rating score.

In March, High Court judge Datuk Akhtar Tahir ruled that CDS was not legally empowered to formulate credit scores, and ordered it to pay RM200,000 together with RM50,000 costs for an inaccurate negative credit rating.

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 (CDS) 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,” the judgement dated March 7 read.

Senior counsel Datuk Malik Imtiaz Sarwar, who appeared with Ashok Kandiah and Khoo Suk Chyi, in reply to Nizam said that there was little chance for Suriati to gain success if the action were to be heard on its merits.

Malik said the High Court had ignored that there was no injury that the credit rating report had on Suriati, and this was acknowledged by the claimant herself when she was cross-examined.

He said the action filed was for the tort of defamation and negligence, but the High Court awarded on the negligence and breach of fiduciary duty, which the Court of Appeal said was wrong and should be breach of statutory duty.

“The suit was based on the argument of defamation and negligence. However, the issue centred on the Webe debt, and the businesswoman was not injured as she failed to prove how the credit rating had affected her prospects of getting loans for her company, Keranji Beach Resort Sdn Bhd.

“If the company had difficulty in getting loans, it should have been the company which filed the action and not her,” Malik said.

Owing to this, Malik said this case had no prima facie chance of success if the appeal is heard on its merits, and it was doomed for failure based on the facts of the case.

At the Court of Appeal on July 9, a three-member bench led by judge Datuk Lee Swee Seng ruled that there was no defamation, no negligence, and no breach of statutory duty by the credit-reporting agency.

In reversing the High Court decision, the appellate bench ruled that the High Court decision to grant damages was erroneous.

The Court of Appeal had also unanimously ruled that credit reporting agencies do not owe a duty of care in common law, and that they may formulate and publish credit scores as part of their business of credit reporting, under the provisions of the Credit Reporting Agencies Act.

Read also:
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