Brief Background Facts

1. In Anish Resources Sdn Bhd v Public Bank Bhd [2025] MLJU 1224, the Appellant, Anish Resources, had instructed its bank, Public Bank via telegraphic transfer remittance forms to transfer a total of €121,100 to 3 ING Bank accounts in the Netherlands, said to be held in the name of the beneficiary/vendor “ALI B BEHEER BV” with account numbers stipulated in the remittance forms. As it transpired the account numbers stipulated were incorrect and the funds did not reach the vendor within the expected 3 days for overseas remittances, despite the Appellant’s account with Public Bank having been debited for the equivalent RM 584,567.00 – the monies having instead been credited by ING Bank, Netherlands into the accounts of 3 other individuals whose account numbers matched that stipulated in the remittance forms.
2. The Appellant immediately instructed Public Bank to recall the remittances, but despite Public Bank’s efforts, it was only able to recover €31,826.75 from ING Bank, Netherlands being the only balance remaining in the 3 accounts credited by ING Bank.
3. The Appellant commenced an action in the KL Sessions Court against Public Bank and ING Bank for the remaining sums and the claim as against Public Bank proceeded to trial whilst the claim against ING Bank was struck out on a jurisdiction point – the Court of Appeal having in 2020 held that the Netherlands was the appropriate forum for any claim that the Appellant sought to mount against the ING Bank.
4. Through the course of the trial, the Sessions Court Judge heard the evidence of the Appellant director and 4 witnesses from the relevant Public Bank branch on the manner in which the remittances were instructed by the Appellant and carried out by Public Bank through its Agent/ Intermediary Bank to the Beneficiary’s Bank, ING Bank and the actions taken for recall. For his part the Sessions Court Judge dismissed the Appellant’s claim holding that the terms of the remittance forms as accepted and completed by the Appellant were clear in that the Appellant shall bear all risks for the transfers, Public Bank when issuing the underlying SWIFT messages for this cross border transfer repeated exactly the information as provided by the Appellant and that Public Bank sitting here in Kuala Lumpur had no means of checking that the 3 ING Bank account numbers stipulated by the Appellant were that of “ALI B BEHEER BV” or that the ING Bank credited the accounts of this beneficiary and no one else.
5. Not satisfied with the decision, the Appellant lodged an appeal and after having heard submissions of Counsel and having considered the cause papers /records, Justice Gan Techiong allowed the appeal and granted judgment in favour of the Appellant and ordered Public Bank to pay the Appellant the balance sum of RM434,503.87 holding that:
   
   • the name of “ALI B BEHEER BV” recorded as the name of beneficiary / payee by the Respondent Bank per the remittance form filled by the Appellant must prevail. The Judge sought to draw support from the dissenting judgment at the English Court of Appeal of Floyd LJ in Tidal Energy Ltd v Bank of Scotland plc [2014] EWCA Civ 1107 on CHAP system transfers in the UK (comparable to the IBG system in Malaysia) on stipulated “identifiers” holding that the cl 9 of the terms and conditions on the subject remittance form (similar to that in Tidal Energy Ltd) that, “For IBG transactions, the credit to the beneficiary’s account will be based solely on the account number given by the applicant.” meant that for remittances other than by way of IBG, account number alone would not prevail and the stipulated identifiers in the remittance form being the name of the beneficiary/payee and the beneficiary/payee account number will apply (paras 45–47).
   • Bank customers worldwide were identified by their names and not their account numbers especially after the coming into force of international anti-money laundering laws (para 48). The contra proferentum rule would apply against Public Bank, the maker of the originator of the remittance form and as such, Public Bank was responsible for ensuring that ING Bank complied with the need to match the beneficiary / payee name (para 49).
   • It was unconscionable for Public Bank to seek refuge behind the exclusion clause in clause 8 which had the effect of restricting the appellant’s right to sue Public Bank for its loss. The Clause was void under s 29 of the Contracts Act 1950 as well as on the authority of the Federal Court in CIMB Bank Bhd v Anthony Lawrence Bourke & Anor [2019] 2 MLJ 1 (see paras 56, 59 & 61).
   • The alleged delay on the appellant’s part in instructing Public Bank to recall the remittances made no difference because if, as submitted by Public Bank, telegraphic transfers could be completed in often a matter of minutes, the monies would still have gone into the wrong accounts even if a recall had been made on 27 March 2020 (para 53) instead of 30 March 2020.