ANISH RESOURCES SDN BHD v PUBLIC BANK BERHAD

Case Significance

Illustrates the construction of a bank's exclusion clauses against it in a misdirected overseas-remittance dispute: applying expressio unius est exclusio alterius and contra proferentem, the court held the bank could not shelter behind exclusion clauses to avoid its duty to use the beneficiary's name, and allowed the customer's appeal.

This High Court decision at Kuala Lumpur is an appeal concerning a bank's liability for a misdirected overseas remittance and the enforceability of its exclusion clauses. The appellant, Anish Resources Sdn Bhd, was a customer of the respondent, Public Bank Bhd, and its money had gone astray in the course of an overseas remittance. In the Sessions Court the customer's claim had been decided against it, and it appealed. The dispute turned on the effect of the bank's terms: the bank's documentation expressly stated that inter-bank giro (IBG) transactions were processed on the basis of the account number, and the question was whether, for an overseas remittance, the bank could rely on exclusion clauses to escape responsibility for failing to ensure that the beneficiary's name, and not merely the account number, was used to identify the payee's account.

The court allowed the appeal. Construing the bank's terms, it applied the maxim expressio unius est exclusio alterius, reasoning that because the bank had expressly stated that IBG transactions were based on the account number, other transactions — including the overseas remittance in issue — were not to be treated as based solely on the account number, so that other identifiers such as the beneficiary's name were applicable to identify the payee's account. It applied the contra proferentem rule against the bank, construing the ambiguity in its own clauses against it, and held that it was unconscionable for the bank to shelter behind exclusion clauses that would leave the customer without a remedy. Distinguishing authority concerned with a bank acting in good faith to guard against fraud, the court found the bank in breach for failing to ensure the beneficiary's name was used, and allowed the customer's appeal with costs. The judgment illustrates the application of expressio unius and contra proferentem against a bank, and the limits of exclusion clauses under section 29 of the Contracts Act 1950 in an overseas-remittance dispute.