Business Law Tutorial 5

1. Explain the fact and judgment in the case of Tan Poh Kien v Mikuni (B) Sdn Bhd (High Court of
Brunei Darussalam) (Suit No. 161 of 2008).

Facts:

- The plaintiff was employed by the defendant as Sales and Marketing Manager from 1
August 2004.
- The defendant is a subsidiary company of Mikuni(Malaysia) Sdn Bhd. The defendant
supplies and installs products, principally valves and valve locks, for Brunei Shell
Petroleum(“BSP”). The managing director for both Mikuni companies is Mr. Yong Chan
Khiong, though initially, the defendant was run by Mr. Pui Shak Lim, who was the
manager for Mikuni (Malaysia) in Miri and Sarawak.
- The plaintiff’s service was terminated on 5 May 2008, and upon termination, he claimed a
sum of $704, 417.98 due to him as against the defendant.
- The plaintiff alleged that he was entitled to such an amount as a result of a collateral oral
agreement made by Mr Yong that he would be entitled to a 50% share of the profit of any
contract obtained by him for the defendant.
- The oral agreement allegedly materialized in the meetings between himself, Mr Yong and
other employees of the two Mikuni companies in Kuala Lumpur circa late December 2004
and in early 2005.
- The defendant denied the claim and asserted that if any money was due to the plaintiff, it
was through commissions.
- The document is mutual.

Issue:

- The Court in this case is concerned with whether the collateral oral agreement between the
plaintiff and Mr Yong can be established and enforced.

Judgement:

- To determine this question, the Court looked at the circumstances of the case.
- At the time of the meetings during which the alleged oral agreement had taken place, the
plaintiff was a new employee, and the Court found it unlikely that the plaintiff should be
informed that he would get 50% of the profits.
- Furthermore, seeing as a decision such as this, if taken, would materially affect the profits
of both Mikuni companies, there should have been a formal record of it in the books.
However, there was none to be found. This arrangement should have also reached Mr Pui,
but standing as witness for the defendant, he remembered no promises being made to the
plaintiff by Mr Yong during those meetings, nor had he ever been informed of it by Mr
Yong.
- Most importantly, the collateral oral agreement alleged by the plaintiff was vague. The
plaintiff failed to explain how, when and where Mr Yong came to propose that the
plaintiff should have a profit sharing agreement.
 - The plaintiff’s claim was dismissed, because he had failed to prove that there was a
collateral oral agreement between him and Mr Yong.

2. Analyse the following scenarios:

i. Where promises between two parties does not qualify as consideration.
- A found B’s watch and gave it back to B. B promised to pay a reward of $50. Later on, B
would not be able to refuse payment on the ground that there was no consideration.
- Mutual engagement is not mutual?
ii. An agreement between two persons to refrain from doing something they are legally
entitled to do.
- Let’s assume that A and B are bounded by a contract with Company C, which is why A and
B are refrained from doing other works outside Company C.
-
3. A crashes his car against B’s car. A has third party insurance with X Sdn Bhd. B asked X Sdn Bhd
to pay for repairs which the latter refused. B wants to sue X Sdn Bhd. Advise B.
- The third-party insurance refusal to pay for repairs for B’s car is because their contract is
with “A” and not with “B”. which is why suing X Sdn Bhd will be unlikely to win as the
law adjust to the reality such as the third-party act.
- Therefore, “B” will not be able to claim from X Sdn Bhd.
- I would advise B to negotiate with A so that A can talk/negotiate with X Sdn Bhd so that
all parties can have a solid solution.
- Isolate the principle, A and B will be based on clear analysis.
- Consideration must move from the policy. Write based on this and explain abit.
- this means that a person to whom a promise is made can only enforce the
promise if they have provided consideration for it.
- The promise can only be enforced only if consideration is provided.

- Eg: if I look at your watch, and you promised to give it to me. However, you change your
mind. Who does not have consideration? ME! Because you promised me the watch but
changed your mind and the fact that I didn’t provide anything else in return.