Yogananthy a/p AS Thambaiya v Harta Pusaka Iris bin Osman [2020] 5 MLJ 455 FC:
[39] Therefore, the agreement dated 8 February 1988 was a sham. Both the High Court and the COA found the agreement to be repugnant and the refused to assist the appellant. Although the sham and public policy were not specifically pleaded by the respondent, it was quite well ventilated during the examination of the relevant witness in the course of trial. In fact, Bala was cross-examined on this, and instead of objecting its introduction as a non-pleaded issue, Bala answered the same by stating that his employer was aware of his arrangement with the deceased and had no objection with it. The learned JC found Bala’s response to be one that was merely a bare denial without more. There was no documentary evidence to evince such a situation between them. He found Balas evidence to lack credibility. In the circumstances, the non-pleading of the sham and public policy issues did not militate against the rule on parties to be bound by their pleadings (see, Gopal Sri Ram in Boustead Trading (1985) Sdn Bhd v Arab Malaysian Merchant Bank Bhd [1995] 3 MLJ 331 (‘Boustead Trading case’)).
