Date and Time: Wednesday, 24 February, 2021 12:09:00 AM MYT
Job Number: 137258364
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1. MVA Investments Ltd v Sri Changgong Sdn Bhd
[2020] MLJU 372
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M.V.A. INVESTMENTS LTD v SRI CHANGGONG SDN. BHD.
CaseAnalysis
| [2020] MLJU 372
MVA Investments Ltd v Sri Changgong Sdn Bhd
[2020] MLJU 372
Malayan Law Journal Unreported
SESSIONS COURT (KUALA LUMPUR)
ZULQARNAIN HASSAN SJ
GUAMAN NO WA-A52NCC-1610-06/2019
4 April 2020
Nicholas Netto (Nicholas Netto) for the plaintiff.
T Lal (Ahmad Fadhli bin Salleh with him) (Zahari Affendi & Partners) for the defendant.
Zulqarnain Hassan SJ:
GROUNDS OF JUDGMENTTHE PLAINTIFF’S CLAIM
[1]The plaintiff is a company incorporated in the United Kingdom [UK] and in the business of exporting used
vehicles to a number of countries including Malaysia.
[2]The defendant is a company incorporated in Malaysia and in the business of importing and selling imported used
luxury vehicles such as Ducati, BMW etc to the Malaysian market.
[3]The defendant held a license [Approved Permit “AP”] to import used vehicles from the UK pursuant to the
Customs Act 1967. The AP was issued by the Ministry of International Trade and Industry.
[4]Since 2000, the plaintiff had been exporting and supplying to the defendant and the latter had been purchasing
and importing used vehicles from the former. The trade between the two parties had been done by Mr. Manoj
Kumar Adatia [PW1], a British citizen and the managing director of the plaintiff and the sales manager of the
defendant Encik Nik Nazlan bin Nik Abdullah [DW1] on behalf of their respective companies.
[5]The manner in which the defendant had placed the order from the plaintiff is explained by PW1 in his testimony
as follows:
“Q: How did Sri Changgong place an order for used vehicle from MVA?
A: I will receive a call from Nik Azlan to enquire if we have stock for a certain model and make of used vehicles. He will
inform us the specification of the vehicle which he wants. We will the check our stock inventory if we have a vehicle which
matches their requirement. On certain occasions, he will take whatever ready stock which we had in our inventory.”
[6]The confirmation of the order was only sealed once the price had been agreed. PW1 said in his testimony:
“Q: How did Sri Changgong confirm the order?
A: Once the price has been agreed, MVA would process the vehicles to be shipped to Malaysia. We will then forward a
copy of the invoice, photocopy of bill of lading, UK vehicle registration document and hire purchase information report in
order for Sri Changgong to apply for an AP for the vehicles. When I made one of my frequent business trips to Malaysia, I
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would meet up with Nik Azlan at Sri Changgong’s office. I will hand over the original invoice, the registration document and
any spare keys to the vehicles. At the same time, I will instruct the Malaysian forwarding agent to release the original bill of
lading to Nik Azlan. Payment will be made via cash in Kuala Lumpur or telegraphic transfer [TT] to our bank in the UK.”
[7]In 2013, the plaintiff placed orders to buy a number of used vehicles [motorbikes] from the defendant. The
particulars of the vehicles are as follows:
First vehicle : Harley Davidson V Rod Muscle
Second vehicle : Yamaha YZF R6
Third vehicle : BMW S1000RR
[8]The parties’ initial agreement for the price of the first vehicle was £11,000-00. However, upon further negotiation,
later on PW1 and DW1 finally agreed that the currency and purchase price for the first vehicle was in Malaysian
Ringgit in the sum of RM72,000-00.
[9]As far as the second and third vehicles, it was agreed that the currency is in Pound Sterling. The agreed price for
the second and third vehicles were £7,250-00 and £10,500-00 respectively.
[10]After the importation and delivery of the three (3) vehicles to the defendant, and until the suit was filed, the
defendant had failed to make payment to the plaintiff regarding the vehicles. As for the first vehicle, the defendant
only made part payment which is half of the price [RM36,000-00]. Another half RM36,000-00 had been due to the
plaintiff.
[11]On 26.06.2019 which is the date this suit was filed, the exchange rate was RM5.2666. See exchange rates at
page 3 CBD.
[12]In the present suit, the plaintiff claims from the defendant the outstanding balance in the sum of RM129,482-15
which is particularized as follows:
First vehicle : RM36,000-00;
Second vehicle : RM38,182-85 [£7,250-00] based on the exchange rate on 26.06.2019; and
Third vehicle : RM55,299-30 [£10,500-00] based on the exchange rate on 26.06.2019.
[13]The total sum for the second and third vehicle is RM93,482-15.
THE DEFENDANT’S DEFENCE AND COUNTER CLAIM
[14]The defendant admitted the purchase of the three (3) used vehicles from the UK.
[15]However the defendant denied that there was an outstanding balance as claimed by the plaintiff for the three
vehicles.
[16]On the other hand, the defendant pleaded that there was an outstanding sum of RM124,752-52 which was due
from the plaintiff as payment for the APs, import taxes, bonded warehouse charges and other fees for the following
five (5) vehicles:
First vehicle
Jaguar : RM58,394-00
Second vehicle
Ducati Diavel AMG : RM5,450-00
Third vehicle
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Ducati Streetfighter : RM16,863-70
Fourth vehicle
Ducati Streetfighter : RM27,808-82
Fifth vehicle
Range Rover Sport : RM16,240-00
[17]The defendant claimed it had paid the APs, import taxes, bonded warehouses fees in advance and was entitled
to claim from the plaintiff.
[18]The defendant also claims that it had made demands from the plaintiff for the amount, but the plaintiff refused to
pay.
THE PLAINTIFF’S DEFENCE TO THE COUNTERCLAIM
[19]The plaintiff admitted to have supplied to the defendant the second, third and fourth vehicles out of the five
vehicles stated in the counter claim as the defendant had placed orders for the three vehicles to the plaintiff.
[20]The plaintiff admitted that the price for the three vehicles had been paid by the defendant.
[21]As for the first vehicle, it had been supplied or sold not to the defendant, but to other AP holder in view of the
fact that the defendant was not the purchaser.
[22]With regard to the fifth vehicle, the plaintiff pleaded that it had no knowledge about it.
[23]The plaintiff further pleaded that the counter claim is illegal and/or unsustainable in law and/or against the public
policy on the following grounds:
(a) The defendant had sold the AP; and
(b) The selling of AP was against the conditions of AP.
[24]The plaintiff pleaded that it was not its responsibility to pay for the APs, import taxes and other fees. Instead it
was the defendant which was required to make the payment as the latter was the seller and distributor of the used
vehicles.
[25]The plaintiff claimed that the counter claim was afterthought and denied having been notified with the demands
from the defendant.
THE DEFENDANT’S REPLY TO THE DEFENCE
[26]The defendant admitted having made payments for the APs, taxes and other fees on the basis that there was
an instruction by the plaintiff to do so.
[27]The defendant claimed that there existed an acknowledgment of the debt owed to the defendant in a written
agreement between the parties dated 18.03.2016. See the agreement at page 26 CBD.
[28]The defendant denied selling the APs as claimed by the plaintiff.
ISSUES TO BE TRIED
[29]There are two (2) issues to be tried as shown in the enclosure 21.
FIRST ISSUE:
Whether the defendant was liable to pay to the plaintiff the sum of RM129,482-15 which is RM36,000-00 for the first vehicle
and RM93,482-15 for the second and third vehicles as claimed by the plaintiff.
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FINDING BY THE COURT
[30]The principle of law is settled. The burden of proof lies on the person who brings a claim in a dispute. The
principle is often associated with the Latin maxim semper necessitas probandi incumbit ei qui agit. See also
sections 101 and 102 of the Evidence Act 1950 [EA].
The Plaintiff Had Sold The 3 Vehicles To The Defendant
[31]Clearly, this is a case of sale and purchase of goods. The plaintiff was the supplier and the defendant’s was its
customer.
[32]After examining the evidence, it is the finding by this Court that the plaintiff had effectively sold the three (3)
vehicles to the defendant.
[33]This Court has considered the direct oral evidence from PW1 which has revealed the finding. The oral
testimony is relevant under section 60 EA.
[34]In his witness statement, PW1 adduced the following oral testimony:
“Q: What is your claim against Sri Changgong before this Honourable Court?
A: MVA is claiming for the outstanding balance due and owing for 3 motor bikes ordered by Sri Changgong which have
been duly delivered to them.
…
Q: Did you receive any part-payments from Sri Changgong for the above 3 motor bikes?
A: For the motor bike listed as item. 1, Nik Azlan and I agreed that the price would be RM72,000-00 in Malaysian Ringgit
when we met at Sri Changgong’s office. He then paid me RM36,000-00 in cash which I received. The purchase price for
the motor bikes listed as No. 2 and 3 remain due and owing.
Q: What transpired after that?
A: I made numerous verbal demands to Nik Azlan for payment but I did not receive any payment. Ultimately, I had no
choice but to instruct my lawyer to send a letter of demand to Sri Changgong. This can be seen at pages 12-13, CBD.”
The Sale Was Transacted Under Normal Course Of Business
[35]It is also the finding by this Court that the commercial deal was transacted under a normal and common course
of business by issuing a commercial instrument - invoice.
[36]This Court accepts the testimony of PW1 who confirmed that the defendant had issued the following invoices to
the defendant:
(1) Invoice dated 16.07.2019 for the first vehicle [see the invoice at page 33 CBD]; and
(2) Invoice dated 29.07.2019 for the second vehicle [see page 34 CBD]; and
(3) Invoice dated 01.09.2013 at page 35 for the third vehicle [see page 35 CBD].
[37]It is the finding by this Court that the above three invoices proves the followings:
(1) The issuer was the plaintiff as the letterhead carries the plaintiff’s name:
“M.V.A INVESTMENT LTD
146A, GIPSY LANE
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LEICESTER
LE4 6RG”
(2) The buyer was the defendant:
“SOLD TO:
SRI CHANGGONG SDN BHD
NO.31, JALAN U-THANT
55000
KUALA LUMPUR
MALAYSIA.”
(3) The prices for the vehicles:
First vehicle : £11,000-00; and
Second vehicle : £7,250-00; and
Third vehicle : £10,500-00.
(4) The chassis numbers were clearly described and tally with the present claim.
First vehicle : 5HD1HPHC8BC802793; and
Second vehicle : JYARJ151000014801; and
Third vehicle : WB105070XBZ071130.
[38]Quick search by this court to the meaning of “invoice” shows it means “a list of goods that have been sold, work
that has been done, etc., showing what you must pay”. See oxford learners dictionaries at
https://www.oxfordlearnersdictionaries.com/definition/english/invoice_ 1?q=invoice
[39]This court is satisfied that the invoices had been kept and issued in the normal course of business and
subsequently are evidentially admissible and relevant to reveal that the three (3) vehicles had been sold to the
defendant. See Bonanza Chemicals Sdn Bhd v. Leaderpac Manufacturing Sdn Bhd [2011] 7 MLJ 135, where the
High Court Kuala Lumpur held:
“The invoices, delivery orders duly acknowledged and statement of accounts being records kept in the normal course of
business of the plaintiff company were admissible documentary evidence that the goods were supplied by the plaintiff to the
defendant.”
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[40]It is this Court’s finding that the invoices confirm the followings:
(a) The identities of the parties which are the plaintiff and the defendant;
(b) The identities of the three (3) vehicles which are the subject matter in the claim;
(c) The sale prices of the vehicles.
Supported By Handwritten Note/Agreement Dated 18.05.2016
[41]The plaintiff’s claim is supported with the handwritten note written by PW1 on 18.05.2016.
[42]This court has no doubt as to the existence of the notes. It is even described and pleaded as an “agreement” by
the defendant.
[43]In this relation, DW1 testified that PW1 had passed the note to him. DW1 adduced this while under cross
examination:
“Q: Do you agree with me this note was written by Mr. Manoj in Sri Changgong’s office when he met you?
A: No.
Q: Where was it written?
A: Normally, already written and then passed to me. I am not sure where.
Q: We stay to the same document. In reference to the vehicle no.1, in the plaintiff’s statement of claim Harley Davidson V
Rod Motorcycle, same document, page 26. Can you look at the hand written part there Harley V Rod RM72,000-00. Can
you confirm with me that yourself, on behalf of Sri Changgonga and Mr. Manoj on behalf of MVA, agreed for the price
vehicle for RM72,000-00?
A: Yes.
Q: On May 2016 as part payment for vehicle no.1?
A: Yes.
Q: And the payment was acknowledged by Mr. Manoj on 18 May 2016 on his hand written note at the bottom right side?
Can you confirm?
A: Yes.”
[44]PW1 confirmed that the stated amount RM36,000-00 in the note is the amount that he had received from the
defendant. In this regard, PW1 testified as follows:
“Q: What was the purpose of this document?
A: Sometime in 2016, I met up with Nik Azlan at Sri Changgong’s office to discuss the outstanding sum due and owing to
MVA. I asked for a piece of paper and I scribbled down the details of the used vehicles which MVA had supplied to Sri
Changgong.
Q: Whose signature is that which appears at the bottom right corner of the document?
A: It was my signature. I signed it to confirm that I had received RM36,000-00 in cash from Sri Changgong as part-payment
for Vehicle No.1.”
The Defendant Was The Importer And Owner Of The 3 Vehicles
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[45]After considering the evidence, it is the finding of fact by this Court that the defendant was the importer and
owner of the three (3) vehicles.
[46]It is plain that the importation of the vehicles were prohibited unless APs had been issued by the relevant
authority. See the meaning of “prohibited goods” under the Customs Act 1967 as follows:
“prohibited goods” means goods the import or export of which is prohibited, either absolutely or conditionally by an order
under section 31 and any subsidiary legislation made under this Act or by any other written law;”
[47]Section 31 of the Act provides as follows:
“(1) The Minister may, by order (a) prohibit the importation into, or the exportation from, Malaysia or any part thereof, either absolutely or conditionally, or
from or to any specified country, territory or place outside Malaysia, or the removal from one place to another place in
Malaysia of any goods or class of goods; and
(b) prohibit the importation into, or exportation from, Malaysia or any part thereof, or removal from one place to another
place in Malaysia of any goods or class of goods, except at specified ports or places.”
[48]This court accepts the letter issued by the Ministry of International Trade and Industry which confirmed that the
defendant was licensed to import the three (3) vehicles [APs]. See letters from MITI at page 1 to 2 CBD. The letter
stated the particulars of the AP holder are as follows:
“2. Dimaklumkan setelah semakan dibuat, Kementerian ini mengesahkan pengeluaran Lesen Import (AP) kepada 3 unit
kenderaan seperti dalam lampiran 1.
Nama Pemilik : Sri Changgong Sdn. Bhd.” [emphasis added]
[49]It is noted that the defendant admitted being licensed to import the vehicles. DW1 under cross examination
said:
“Q: En. Nik Azlan, did Sri Changgong apply for an AP from MITI for these 3 motorbikes?
A: Yes.”
[50]Being the importer and AP holder, the defendant was clearly the owner of the vehicles. This principle is
provided for under the meaning of “owner” under section 2 of the Customs Act 1967:
“owner”—
(a) in respect of goods, includes any person (other than an officer of customs acting in his official capacity) being or holding
himself out to be the owner, importer, exporter, consignee, agent or person in possession of, or beneficially interested in, or
having any control of, or power of disposition over, the goods; and”
The Vehicles Were Consigned To The Defendant
[51]The court also accepts the bill of lading produced by the plaintiff. The bills issued by shipping company
correspond to the identity of the three (3) vehicles which were discharged at the Port Klang and notified to the
defendant. Though the stated consignee is Persatuan Pengimport dan Peniaga Kenderaan Melayu Malaysia
(PEKEMA), it is only an association of all the Malay Car Importers or the Malaysian Association of Malay Vehicle
Importers and Traders which the defendant had the formal connection with. Otherwise the defendant would not be a
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notified party in the document. See bills of lading at pages 5 to 7 CBD
The Application Of Sections 42 And 55 (1), Sales Of Goods Act 1957
[52]This court agrees with the contention of the learned solicitor for the plaintiff that sections 42 and 55 (1) of the
Sales of Goods Act 1957 are applicable to the defendant.
[53]It is clear that the conduct of the defendant by having the AP, paying the import tax and other fees, and by
retaining the vehicles, the defendant was statutorily deemed to have accepted the vehicles. See section 42 of the
Sales of Goods Act 1957 which provides:
“42. Acceptance
The buyer is deemed to have accepted the goods when he intimates to the seller that he has accepted them, or when the
goods have been delivered to him and he does any act in relation to them which is inconsistent with the ownership of the
seller, or when, after the lapse of a reasonable time, he retains the goods without intimating to the seller that he has
rejected them.”
[54]Section 55 of the above Act enables the plaintiff to recover the price from the defendant.
“55. Suit for Price
(1) Where under a contract of sale the property in the goods has passed to the buyer and the buyer wrongfully neglects or
refuses to pay for the goods according to the terms of the contract, the seller may sue him for the price of the goods.”
Issuance Of Letter Of Demand
[55]The plaintiff through its solicitor sent a letter of demand dated 12.06.2019 to the defendant. The letter gave
seven (7) days’ notice for the defendant to comply.
[56]DW1 admitted the receipt of the letter, so as the managing director of the defendant Dato Lokman but never
replied to it.
[57]The law is settled that in a commercial transaction such as this, the defendant was reasonably expected to
answer it promptly. The failure to comply would infer an admission. See Court of Appeal case of David Wong Hon
Leong v. Noorazman bin bin Adnan [1995] 4 CLJ 155.
Admission By The Defendant
[58]Carefully and closely examining the evidence reveals that the defendant admitted owing to the plaintiff.
[59]DW1 in his witness statement said:
“Q: Is any money owed to the plaintiff and if so how much is owed?
A: RM96,829-23 is owed to the plaintiff.
Q: Was there a written agreement to support this amount?
A: Yes. Please see page 26 of the Common Bundle of Documents which is a handwritten statement of accounts by Mr.
Max which shows that the balance owing as at 18/03/2016 was RM96,829-23.
Q: If you agree that RM96,829-23 is owed by the defendant why has the defendant not paid to the plaintiff?
A: Because the plaintiff owes the defendant a sum of RM124,756-52.
Q: Therefore, how much actually the plaintiff owes the defendant?
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A: The net effect is that the plaintiff owes to the defendant is RM124,756-52 - RM96,829-23 = RM27,927-29.
Q: Did the defendant ever demand the RM27,927-29 due to the defendant?
A: No.
Q: Why not?
A: The defendant never demanded the RM27,927-29 from the plaintiff as there was ongoing business between the parties
and it was agreed verbally between Mr. Max and myself that amount would be adjusted against any future business
between the parties.”
[60]Clearly the admission suggests an inference of owing the sums to the plaintiff. See sections 17(1) and 18(1)
EA.
Conduct Of The Defendant
[61]The making of part payment of the total price by the defendant with regards to the first vehicle is a conduct that
supports the plaintiff’s claim. The conduct is relevant under section 8 EA.
Defence Did Not Dislodged The Plaintiff’s Case
[62]It is the finding of fact by this court that the defendant only made bare denial without adducing sufficient
evidence to dislodge the plaintiff’s claim. The principle is settled that this Court is unable to give due weight to such
a defense. See Ladang Tai Tak (KT) Sdn Bhd v. Suppiah a/l Andy Thavar & Ors [1999] MLJU 56.
[63]To sum up, the principle is well settled. Evaluating the evidence must not confine to one part or read it in
isolation, but must also appreciate the quality and probability of it in its entirety in order to come to an appropriate
and fair conclusion. See Kamdar Sdn Bhd v. Bipinchandra a/l Balvantrai & Ors [2016] MLJU 974, MMC Oil & Gas
Engineering Sdn Bhd v. Tan Bock Kwee & Sons Sdn Bhd [2016] 2 MLJ 428 and Gurdev Singh a/l Tejwant Sing &
Ors v. Pendakwa Raya [1999] MLJU 718
[64]After considering the evidence comprehensively, this court is satisfied that the answer to the issue is in the
positive.
SECOND ISSUE:
Whether the plaintiff was liable to pay the defendant the sum of RM124,756-52 for the five (5) vehicles as counter claimed
by the defendant.
[65]The particulars of the five (5) vehicles pleaded in the counter claim are as follows:
First Vehicle - Jaguar
[66]The counter claim by the defendant relating to this vehicle is for the items and amounts particularized as
follows:
(a)
Approval permit (AP)
: RM30,000-00
(b)
Custom Clearance (K8)
: RM2,094-00
(c)
Bonded 7/2014 to 6/2018
: RM23,500-00
(d)
Paint Job 6/18
: RM1,800-00
(e)
Transfer bonded to Tenaga
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Wan Showroom
: RM1,000-00
TOTAL
: RM58,394-00
Second Vehicle - Ducati Diavel Amg
[67]The counter claim is on these items:
(a)
Approval Permit (AP)
: RM3,000-00
(b)
Custom Clearance (K8)
: RM1,500-00
(c)
Bonded (8/2013-2017)
: RM500-00
(d)
Forwarding to Export
: RM450-00
TOTAL
: RM5,450-00
Third Vehicle - Ducati Streetfighter
[68]The counter claim is on these items:
(a)
Approval Permit (AP)
:RM3,000-00
(b)
Custom Clearance (K8)
:RM1,522-00
(c)
K1 Submission
:RM450-00
(d)
Custom Duty
:RM11,291-70
(e)
Bonded (4/15-10/16)
:RM500-00
(f)
Transfer to Efficient
E-Solutions Bhd
:RM100-00
TOTAL
: RM16,863.70
Fourth Vehicle - Ducati Streetfighter
[69]The counter claim is on these items:
(a)
Approval Permit (AP)
:RM3,000-00
(b)
Custom Clearance (K8)
:RM1,822-00
(c)
K1 Submission
:RM450-00
(d)
Custom Duty
:RM21,936-82
(e)
Bonded (4/15-10/16)
:RM500-00
(f)
Transfer to Efficient
E-Solutions Bhd
:RM100-00
TOTAL
:RM27,808-82
Fifth Vehicle - Range Rover Sport
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[70]The counter claim is on these items:
(a)
Formula off Road
Equipments (M) sdn Bhd
(b)
:RM5,110-00
Formula off Road Equipments
(M) sdn Bhd
:RM2,130-00
(c)
CC AUTO service
:RM2,200-00
(d)
E.Y.L. Services (M) Sdn Bhd
:RM6,800-00
TOTAL
:RM16,240-00
FINDING BY THIS COURT
[71]The principle is settled that the defendant must prove the existence of fact that he is entitled to payment from
the plaintiff. See Court of Appeal case of Yeohata Machineries Sdn Bhd & Anor v Coil Master Sdn Bhd & Ors
[2016] 2 CLJ 414.
[72]The illustration (b) under section 101 EA provides:
“(b) A desires a court to give judgment that he is entitled to certain land in the possession of B by reason of facts which he
asserts and which B denies to be true. A must prove the existence of those facts.”
[73]This court is of the considered view that no evidence adduced that the plaintiff had agreed that the defendant
would be entitled for the payment ie reimbursement or refund or compensated by the plaintiff.
The Defendant Was Not Entitled To The Fees From The Plaintiff
[74]This court has carefully considered the evidence adduced by the defendant and is satisfied that not an iota of
evidence has proved the followings:
(a) The existence of the import duties, fees for APs, customs clearances etc for these particular vehicles; and
(b) The amounts for the APs, customs duties etc for these vehicle; and
(c) The defendant had paid the taxes/fees in advance for these vehicles; and
(d) The plaintiff had to bear the taxes, fees and other payments.
[75]It is plain that the defendant had failed to produce reliable documentary evidence such as invoice, import duty,
receipt of payment etc on each of the vehicle to this court.
[76]This court agrees with the submission of the learned solicitor for the plaintiff that what the defendant had
adduced was only the summary of the claims.
[77]The law is clear that a summary is insufficient to prove a claim. See Lay Hong Food Corp Sdn Bhd (Previously
Known as Lay Hong Poultry Processing Sdn Bhd) v. Tiong Nam Logistics Solutions Sdn Bhd [2018] 2 MLJ 66
which held:
“Balance sheets or summary of billings do not by themselves prove the facts stated therein. It has to be proven like any
other fact, be it affidavit or otherwise. The facts as stated in the summary of billings are mere statements and it cannot be
taken as proving that the statements are correct. It has to be proved by calling the maker to explain the facts and the basis
of the calculation of the amount which is being claimed. In our present case, no evidence of the basis of the summary of the
billings was adduced.”
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The Defendant Was Liable To Pay Import Tax
[78]This court also finds that based on the counter claim, it implies that the defendant wore three hats with regards
to the vehicles; purchaser, importer and lastly owner.
[79]This Court even to add further that under the law, it is not the plaintiff which is required to pay the import tax as
it is the exporter. The statutory scheme of the Customs Act 1967 requires the defendant as an importer to pay the
import tax. The same position with regards to the AP fees and etc. It is the holder of the AP which has to pay for the
AP fees.
[80]Therefore for this reason, it is hard to conclude that the plaintiff has to pay the duty.
No Evidence That There Was An Instruction From The Plaintiff
[81]The defendant pleaded that it had made the payment for the APs, taxes and other fees due to the instruction by
the plaintiff for it to do so.
[82]It is the finding of fact that the defendant had failed to adduce the necessary and reliable documents to support
its contention.
[83]This Court wishes to add that it is extremely unreasonable for the plaintiff to give the instruction to the
defendant as the parties were independent from each other and they were separate entities.
The Agreement Failed To Show The Debt
[84]The defendant claimed that there existed an acknowledgment of the debt owed to the defendant in a written
agreement between the parties dated 18.05.2016.
[85]After carefully examining the agreement, this court finds that nothing was provided for the acknowledgment of
the debt by the plaintiff.
[86]This court would add further that the so called one page “agreement” clearly had full of ambiguities. It had
question marks and underlines, different styles of handwritings, short forms, circles and correct marks. Unless
agreed to by the parties on the content or particular item of the so called “agreement”, this court finds it hard to
conclude what was the agreed intention, version and interpretation from the handwritten note in the agreement.
[87]In this relation, it is useful to refer to a guidance on drafting an agreement in an article “TIPS FOR ACHIEVING
CLARITY IN CONTRACT DRAFTING” by Christina Costa and Muyiwa Odeniyide from the Georgetown University
Law Centre as follows:
“Contracts by their very nature are prospective documents. Unlike legal memoranda and briefs that generally look back at
past actions, contracts are forward looking and serve a planning purpose to guide future behavior. A significant reason for
putting a contract in writing is to memorialize what the parties have agreed upon in hopes of preventing future disputes. The
goal when drafting contracts should be to draft every sentence with precision such that only one possible interpretation
follows—the interpretation the drafter intends. You should aim to avoid any ambiguity in the contract.” See
https://www.law.georgetown.edu/wp-content/uploads/2018/07/Tips-for-Achieving-Clarity-in-Contract-Drafting.pdf
New Material Fact Not Pleaded By The Defendant
[88]This court finds that the defendant had raised a new material fact which was not pleaded. In the oral testimony
of DW1, the defendant claimed that the plaintiff owed to the defendant RM124,756-52 whereas the defendant owed
to the plaintiff RM96,829-23 making the net effect is RM27,927-29 as an amount due from the plaintiff. This court
finds that the sum RM96,829-23 was a material fact, yet newly raised and not pleaded by the defendant.
[89]The Court takes note that the sum allegedly owed to the plaintiff was material to complete the whole course of
action and an omission would render the counter claim bad. In Bruce v. Odhams Press Ltd [1936] 1 KB 697, Scott
LJ said:
“The word ‘material’ means necessary for the purpose of formulating a complete cause of action, and if any one ‘material’
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fact is omitted, the statement of claim is bad”.
[90]The law is settled that unpleaded material fact must not be considered and the failure to plead is fatal to the
counter claim. See Pacific Inter-Link Sdn Bhd v. Wilmar Trading Pte Ltd & Ors. [2017] CLJ 312 and Credit
Guarantee Corporation Malaysia Berhad v. SSN Medical Products Sdn Bhd [2016] MLJU 1304.
No Demand From The Defendant To The Plaintiff
[91]DW1 confirmed that there had never been a letter of demand issued by the defendant. Under cross
examination, DW1 said:
“Q: Now can you confirm that there was no letter of demand from Sri Changgong to MVA for this amount, purportedly
owing. Do you agree?
A: Yes.”
[92]That being the case, this Court is of the considered view that the counter claim was a recent invention created
for the purpose of defending the present suit and accordingly it was an afterthought. See Shinning Crest Sdn Bhd
(Appointed Receiver and Manager) & Ors v. Malaysia Building Society Bhd [2018] 10 MLJ 491.
ANALYSIS ON THE DEFENDANT’S SUBMISSION
[93]The submission by the learned solicitor for the defendant on the two issues to be tried centered on one point the application of equitable set off. In the written submission, the learned solicitor submitted as follows:
“
i)
The defendant contends that it has proved that the plaintiff owes to the defendant the sum of RM27,927.29 by
way of a set off from RM96,829.23 owed by the defendant to the plaintiff and RM124,756.52 owed by the plaintiff
to the defendant.
ii)
By the plaintiff’s only witness under cross examination admitted that vehicles were returned by the defendant to
the plaintiff but no payment was made by the plaintiff to the defendant.
iii)
It follows therefore that payment if due from the plaintiff to the defendant for returned vehicles and the associated
costs of carriage and shipping which the plaintiff has failed to pay.
iv)
The applicable law is by way of an equitable set off.”
[94]The learned solicitor also submitted that:
“3. THE PLAINTIFF’S STATEMENT OF CLAIM
i)
No mention by the plaintiff of any vehicles returned by the defendant to the plaintiff in its statement of claim;
ii)
Plaintiff denied any vehicles returned to the plaintiff in its defense to the defendant’s counter claim.”
[95]This court cannot accept the argument as no law submitted by the defendant that the plaintiff is required to
mention the return of the vehicle in the statement of claim.
[96]The learned solicitor for the defendant also submitted that as there were no contractual documents to regulate
the business dealing between the parties, this Court has to apply the principles of equitable set off. In this regard,
the solicitor referred the cross examination of PW1 as follows:
“Q: Question 38, you denied the contents of the counter claim. What you said “We cannot be made responsible for the
purported expenses as listed in the counter claim”. Would you agree with me when someone has to send stuff back to you,
do all the running around in Malaysia, get your documents back when you even get back vehicles back to the port, there
are expenses incurred, agree or disagree?
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A: Yes, Your Honour.
Q: So since £33,500-00 was paid to you, the vehicles now sent back to you. They obviously incurred a cost of sending it
back to you. How do you account for the £33,500 back to the defendant?
A: Your Honour, £33,300-00 was for two motorcycles, Subsequently, one was shipped back and I paid the shipping cost,
Your Honour. The one that was kept here, the amount for that vehicle which was motorcycle was deducted.
Q: Have you got any documents here when you said to the Court that you paid for the shipping back. Any documents in
bundle to substantiated that?
A: No, Your Honour.”
[97]This court finds that the above submission is without merit. No credible evidence was adduced by the defendant
suggesting that the whole business between the parties had no contractual documents, expressly or impliedly.
Clearly DW1 never testified to this effect. To further fortify the finding, the nature and circumstances of the case
reasonably suggests to the contrary.
[98]On the above oral testimony of PW1 referred to by the learned solicitor, this court is satisfied that PW1 only
testified that the relevant document was not in the bundle and not that the business was not regulated by
contractual documents.
[99]On the equitable set off, the learned solicitor cited Autoweld Systems Ltd v. Kito Enterprises LLC [2010] 4
MLRA 89 as an authority and stressed upon the following paragraph:
“For equitable set-off to be permissible, there is a “formal requirement” of close connection between the dealings and
transactions which give rise to the claim and the cross-claim and there is also a “functional requirement” that it would be
unjust to enforce the claim without taking into account the cross claim.”
[100]This court finds that the authority, unlike in the present case, discussed on the issue of security for costs and
not on the full merit of the case. Accordingly it must be distinguished.
[101]To this Court, based on the evidence presented, the principle is not applicable considering that necessary
facts which gave rise to set off had not been adduced by the defendant during examination of DW1 and cross
examination of PW1. No reliable evidence adduced with regards to the existence and amount of each of the
particular items ie import taxes, AP fees, the costs of carriage and other fees to suggest set off and that the plaintiff
had to bear each of them. Furthermore nothing adduced that the parties had agreed to the set off.
[102]To further fortify the above finding, the necessary facts and amounts were also not pleaded in the statement of
defense. See the judgment in Philips v. Philips [1878] 4 QBD 127 where it was held:
“….But in my opinion it is absolutely essential that the pleading, not to be embarrassing to the defendants, should state
those facts which will put the defendants on their guard and tell them what they have to meet when the case comes for
trial.”
[103]The Court finds that PW1 had taken a fair step by deduction of the amount for the vehicle that was kept in
Malaysia. As for the one that had been shipped back, PW1 testified that he had paid the shipping cost.
[104]Upon perusal of the evidence and law, this court is of the considered view that the principle of equitable set off
is not applicable to the present case.
CONCLUSION
[105]After considering the pleadings, evidence and submissions by the parties, on the balance of probabilities, it is
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the finding of this Court that the plaintiff has succeeded in proving the claim and the defendant has failed to prove
the counter claim.
[106]Accordingly the claim is allowed with cost RM10,000-00 and the counter claim is dismissed with cost
RM10,000-00.
End of Document