PYM claimed the P made the following representations to them before and at time PYM enrolled for the sewing courses with the P s school:-

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1 JANATA GOTUO & 23 OTHERS V HALUAN KOTA SDN. BHD. Tribunal for Consumer Claims Kota Kinabalu, Sabah No: TTPM-SAB-(P) President: Datuk Dr. Lawrence S.H. Thien 12 February 2009 GROUNDS OF JUGDEMENT THE CLAIMS On 20 th October Awards (Borang 8) were made against the Penentang. The Penentang filed Borang 12 (application to set aside the awards). I allowed the application and set aside the awards. I then proceeded to hear the 24 claims afresh. The claims were filed by Pihak Yang Menuntut (PYM) based on same facts and grounds against the same Penentang (P) a training school where the PYM attended sewing courses. PYM claimed the P made the following representations to them before and at time PYM enrolled for the sewing courses with the P s school:- (1) Course fee be borne by Tabung Pusat Sumber Manusia, Kuala Lumpur/government (except registration fee and uniforms). (2) Allowance of RM per month would be given to PYM throughout these six months (full time trainees) or 12 months course (part time). (3) PYM be given job opportunities when P set up its own factory. The PYM were induced by the said representations to enroll in the courses. All the representations made turned out to be false or misleading. The PYM were asked by P to apply for loans from Perbadanan Tabung Pembangunan Kemahiran (PTPK) to pay for the course fees and the PYM duly applied for such loans. The PYM have since received Notices of Loan Repayment from PTPK dated 31 st March DEFENCE (1) P runs a private business and courses are not free. The fee is RM 5, a year. (2) No allowance was promised. 1

2 (3) The loans were taken by PYM from PTPK/government to pay the course fees and the PYM are responsible to repay the loans. (4) No promise of jobs to PYM. P did try to set up factory but the loan for this was not approved. Hence P could not give jobs to the PYM. (5) The claims are time-barred (refer Section 99 (2) of the Consumer Protection Act 1999). THE ISSUES (1) Did the P make the representations as claimed to the PYM? (2) Did the said representations induce the PYM to enroll for the sewing courses with the P s school? (3) Did the said representations turn out to be false and misleading? (4) Did the PYM suffer damages as a result of the P s said representations? (5) Are the claims time-barred under Section 99 (2) of the Consumer Protection Act 1999? DECISION My findings are as follows:- (1) The P did make the representations as claimed by the PYM which induced the PYM to enroll in the said courses with the P. (2) Course fees paid through loans taken by the PYM from PTPK/government. (See Exhibit PYM-1 Loan Agreement) (3) No allowance was paid to PYM as represented and agreed by the P. (4) No factory was set up by P to give jobs to PYM as represented and agreed by P. P admitted in Defence and at the hearing that the factory was not set up as loan from Bank Islam/Bank Rakyat for project not approved. By this admission P also expressly or impliedly admitted its representations that the PYM be given jobs in the P s factory. (5) The PYM did not deny that Loan Agreements were entered into between PYM and PTPK/government. 2

3 (6) The specified purpose of the loan as stated in the Loan Agreement was to pay the course fees for the sewing course. (7) PYM to pay loan by installments to the PTPK/government. (8) The loans were guaranteed by guarantor stated in the Loan Agreements. (9) The P was not a guarantor for the PYM s loans. (10) The P carries on business as a private enterprise. As such the course conducted by P for PYM cannot be free of charge and the course fees must be payable to the P who was in fact paid through the loans of the PYM. (Refer Exhibits PYM-4 Notis Tuntutan) (11) However, the P must be responsible for the representations it made:- (a) (b) That the course fee would be borne by the Tabung Pusat Sumber Manusia/government. That the PYM would be paid allowance of RM per month for the duration of their courses; and (c) That the PYM were to be given jobs in the factory to be set up by the P. (12) The representations induced the PYM to enroll in the courses and such representation turned out to be false and misleading. The P are therefore in breach of their obligations under Sections 8, 9 and 10 of the Akta Pelindungan Pengguna 1999 (Provisions on misleading conduct and false and misleading representations). (13) The PYM suffered loss and damage as a result of the misleading conduct and false and misleading representations of the P. If not for the default of the P in setting up a factory the PYM would be given jobs there and they would have income to service their loans with PTPK. Though there were Loan Agreements the PYM had a reasonable and legitimate expectation that as a result of the P s representation that the course fees would be borne by the Tabung Pusat Sumber Manusia/government (as orally represented by the P and as stated in the Borang Permohonan Masuk (PYM-2) and supported by Pendaftaran Kursus Jahitan (PYM-3) that the said loans were to be eventually written off by the Tabung/government or be converted into a grant or subsidy. Such grant or subsidy is not uncommon in skill courses where government wanted to assist poor people from the rural areas such as the PYM. (14) But until and unless the government waives repayment of said loans the PYM are liable to repay the said loans. The damages to be awarded to the PYM will take into account the allowance which the P agreed to pay the PYM, the income the PYM would have earned (RM per month based on evidence of P) if the jobs in the P s factory materialized and the loans the PYM would have to repay the PTPK. 3

4 (15) The PYM s loans is a matter to be settled between the PYM and the PTPK in accordance with the Loan Agreements. No order is made against the PTPK in respect of the loans as the PTPK is not a party in these cases and PYM did not make a claim against the PTPK. (16) Defence of Penentang that the claims are time-barred Section 99 (2) Consumer Protection Act 1999 The jurisdiction of the Tribunal shall be limited to a claim that is based on a cause of action which accrues within three years of the claim. Issues (1) What is cause of action of Pihak Yang Menuntut? (2) Did such cause of action accrued within 3 years of the claim? Claim (1) Membayar balik keseluruhan pinjaman. (2) Elaun. (3) Penentang tidak memberi pekerjaan. In effect the PYM are asking that they do not have to pay the loans and that they be indemnified by the Penentang for the loan and damages. A cause of action is deemed to have accrued when two conditions are satisfied: (a) (b) There is in existence a person who can sue and another who can be sued. All the facts have happened which are material to be proved to entitle the Plaintiff to succeed. Condition one is satisfied. There exist PYM who can sue and Penentang exist who can be sued. As to condition two: The PYM only came to know that the loans are to be repaid when notice of demand are received by them and loan agreement were supplied to them by the Lender in Only in 2008 are the PYM able to prove their claims with the full facts and documents available. Therefore the cause of action of the PYM did not accrue within 3 years of the claim. The cause of action accrued only in The 3 years period did not begin to run from December 2002 as alleged by the Penentang but from 2008 and since the claims were filed to the Tribunal in May 2008 the claims are not time barred. 4

5 AWARD I therefore make the following award:- (1) P dikehendaki membayar kepada PYM wang sebanyak RM 2, dalam masa 14 hari dari tarikh award diserahkan. (2) P dikehendaki keluarkan sijil kepada PYM yang telah tamat mengikuti kursus dalam masa 14 hari dari tarikh award diserahkan. (3) P dikehendaki membayar kepada PYM kos sebanyak RM dalam masa 14 hari dari tarikh award diserahkan. 5