DI DALAM MAHKAMAH TINGGI MALAYA DI JOHOR BAHRU
DI DALAM NEGERI JOHOR DARUL TAKZIM
GUAMAN SIVIL NO. (MT-1) 22-185-2003
ANTARA
SELAMAT BIN MOHAMAD LAHIR
…PLAINTIF
DAN
1.
2.
MINSIN MACHINERY CORPORATION SDN. BHD
(No. Syarikat: 239106-V)
PUBLIC FINANCE BERHAD
(No. 6471-U)
…DEFENDAN-DEFENDAN
DI DALAM MAHKAMAH TERBUKA
DI HADAPAN Y.A. TUAN VERNON ONG
HAKIM
GROUNDS OF JUDGMENT
The plaintiff purchased a used reconditioned motorcar from the 1st
defendant. The purchase of the motorcar was financed by the 2nd
defendant. The plaintiff is seeking a declaration that the hire-purchase
agreement with the 2nd defendant is null and void and for special damages
of RM210,000.00 and general damages against the 1st and 2nd defendants.
Brief account of the facts
Sometime in September 2002 Selamat Bin Mohamed Lahir (the
plaintiff) agreed to buy an imported reconditioned Mercedes Benz E200
(‘the motorcar’) from Minsin Machinery Corp. Sdn Bhd (the 1st defendant) a
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use car dealer for RM210,000.00. The motorcar was sold to the plaintiff
with a warranty period of 1 month. The plaintiff traded in his car with the 1st
defendant. The balance purchase price for the motorcar was financed by
Public Finance Berhad (the 2nd defendant) under a hire-purchase
agreement (‘the HP Agreement’) on 4.9.2002.
Plaintiff’s case
The plaintiff’s main contention is that he purchased the motorcar on
the 1 defendant’s representation that the motorcar was imported from the
United Kingdom. The plaintiff also contends that he entered into the HP
Agreement on the 2nd defendant’s representation to the same effect.
st
The motorcar is not of merchantable quality. After taking delivery of
the motorcar the plaintiff encountered numerous problems with the
motorcar. The motorcar was sent back to the 1st defendant for repairs on
three occasions. On 15.11.2002 the plaintiff sent the motorcar to another
workshop for inspection and repairs. The plaintiff then asked the 1st
defendant to pay the repair costs. On subsequent checking the plaintiff
also discovered that the motorcar was not from the UK but was previously
registered in Singapore. The plaintiff then left the motorcar at the workshop
until it was repossessed by the 2nd defendant.
Findings of the Court
In this case the plaintiff contends the HP Agreement is null and void
on the grounds that: (i) the motorcar is not of merchantable quality, and (ii)
the 1st defendant and or 2nd defendant misrepresented to the plaintiff that
the motorcar was imported from the UK.
(i) merchantable quality
The plaintiff took delivery of the motorcar on 3.9.2002. After taking
delivery of the motorcar the plaintiff sent the motorcar back to the 1st
defendant for repairs on 3 separate occasions during the warranty period.
Mr. Mah Chin Wee (DW2) a salesman with the 1st defendant confirmed that
the motorcar was returned to the plaintiff after the repairs were effected.
As the plaintiff was still not satisfied with the condition of the motorcar the
plaintiff sent the motorcar to Cycle & Carriage for an inspection. The
foreman at Cycle & Carriage told him that there was leaking at the rack and
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pinion and that the repair costs was about RM10,000.00. The plaintiff then
sent the motorcar to Prima Tebrau workshop which carried out the repairs
for a lower sum. However, as the plaintiff was still not satisfied, he asked
Prima Tebrau workshop to do a more thorough check. On 15.11.2002
Prima Tebrau gave the plaintiff a quotation for RM23,107.00 for the repairs.
The plaintiff asked the 1st defendant to undertake the costs but the 1st
defendant refused. As the plaintiff felt that he could not use the motorcar
any longer he left the motorcar at Prima Tebrau workshop until it was
repossessed by the 2nd defendant.
The motorcar was accepted by the plaintiff where he took delivery of
the same. The ownership of the motorcar was also registered in the
plaintiff’s name. Notwithstanding the repairs undertaken by the 1st
defendant and Prima Tebrau, the plaintiff was still not satisfied. The
plaintiff used the motorcar from September till November 2002, except for
intervals during which the motorcar was in the workshop for repairs. The
last straw was when the 1st defendant refused the plaintiff’s request to bear
the costs of RM23,107.00 for the additional repair works. However, upon
perusing the quotation in question, it can be seen that most of the items
described in the quotation are those are normally replaced from time to
time in the normal course of usage. There is no evidence to show that the
motorcar was not roadworthy or otherwise unfit for use on the roads.
Taken in this light and coupled with the fact that the motorcar is a used
reconditioned car, it is not unreasonable to expect the motorcar to be free
of any defects due to normal wear and tear. As the plaintiff did not call any
witness from Prima Tebrau workshop or any other mechanic or foreman to
testify on the state and condition of the motorcar, there is no independent
evidence to corroborate the plaintiff’s assertion that the motorcar was not of
merchantable quality. By reason of the foregoing the Court is unable to
infer that the motorcar was not of merchantable quality.
Be that as it may, it is pertinent to note that under clause 5.1 of the
HP Agreement, all implied conditions and warranties as to quality, fitness
and suitability of the motorcar have been expressly excluded. Even if the
motorcar is not of merchantable quality, the plaintiff’s right is negative by
clause 5.1 so as to preclude any recourse against the defendants.
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(ii) misrepresentation
Turning now to the question of misrepresentation. The plaintiff said
that he agreed to buy the motorcar from the 1st defendant because DW2
represented to him that the motorcar was imported from the UK. He said
he was shown 3 documents, (i) an Application For Import Licence form
(exh D3B); (ii) a Declaration of Goods Imported form (exh D3A); and (iii) a
letter of indemnity. DW2 dealt with the plaintiff on the sale and purchase of
the motorcar. DW2 said that he did not say where the motorcar originated
from. DW2 denied making the representation and showing the documents
(i) and (ii) to the plaintiff.
Do the documents in question show that the motorcar was imported
from the UK? The plaintiff asserts that item nos. 9 and 10 of D3B shows
that the motorcar is from the UK. Item no. 9 relates to the country of origin
whilst item no. 10 relates to where the motorcar is consigned from. In both
items it is stated as ‘ENGLAND/JEPUN/SOUTH AFRICA’. Item no. 10 is
more explicit in that it states that the exporter of the motorcar is a UK based
company. In fact Mr. Nea Ching Kim (DW1) the 1st defendant’s manager
also referred to a copy of a registration card of the motorcar from the
country of origin which shows that the motorcar was originally registered in
the UK. On a balance of probabilities the Court finds that the 1st defendant
did represent to the plaintiff that the motorcar was imported from the UK
and that the plaintiff was induced into buying the motorcar on the basis of
the representation. There is however, no evidence to support the plaintiff’s
assertion that the 2nd defendant or any servant, agent or employee of the
2nd defendant made such representation to the plaintiff.
If so, is there any evidence to show that the motorcar is not imported
from the UK? It is trite that the party who desires the court to give
judgment as to any legal right or liability bears the burden of proof (s 101(1)
Evidence Act 1950). The burden of proof is on that party is twofold: (i) the
burden of establishing a case; and (ii) the burden of introducing evidence.
The burden of proof lies on the party throughout the trial. The evidential
burden of proof is only shifted to the other party once that party has
discharged its burden of proof. If that party fails to discharge the original
burden of proof, then the other party need not adduce any evidence. In this
respect it is the plaintiff who must establish his case that the motorcar was
not imported from the UK. If he fails to do so, it will not do for the plaintiff to
say that the defendants have not established their defence (Selvaduray v
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Chinniah [1939] MLJ 253 CA; s 102 Evidence Act 1950). On the effect of
the burden of proof not being discharged, Terrell Ag CJ in Selvaduray v
Chinniah, supra adopting the position stated by the Court of Appeal in
Abrath v North Eastern Railway Co [1883] 11 QBD 440 said:
In such a case as the present the position has been clearly stated in the
judgment of Brett MR in Abrath v North Eastern Railway Co [1883] 11 QBD
440, at page 452:
‘But then it is contended (I think fallaciously), that if the plaintiff has given
prima facie evidence, which, unless it be answered, will entitle him to have
the question decided in his favour, the burden of proof is shifted on to the
defendant as the decision of the question itself. This contention seems to
be the real ground of the decision in the Queen’s Bench Division. I cannot
assent to this. It seems to me that the propositions ought to be stated thus:
the plaintiff may give prima facie evidence which, unless it be answered
either by contradictory evidence or by the evidence of additional facts,
ought to lead the jury to find the question in his favour: the defendant may
give evidence either by contradicting the plaintiff’s evidence or by proving
other facts: the jury have to consider upon the evidence given upon both
sides, whether they are satisfied in favour of the plaintiff with respect to the
question which he calls them to answer; if they are, they must find for the
plaintiff; but if upon consideration of the facts they come clearly to the
opinion that the question ought to be answered against the plaintiff; they
must find for the defendant. Then comes this difficulty – suppose that the
jury, after considering the evidence, are left in real doubt as to which way
they are to answer the question put to them on behalf of the plaintiff: in that
case also the burden of proof lies upon the plaintiff, and if the defendant
has been able by the additional facts which he has adduced to bring the
minds of the whole jury to a real state of doubt, the plaintiff has failed to
satisfy the burden of proof which lies upon him.’
Applying the principles laid down by the Court of Appeal in the above case, it
is clear that the onus is on the plaintiff to prove his case. After the conclusion
of the whole case there must be some preponderance in his favour. It may
be true that the plaintiff established a prima facie case, but at the conclusion
of the trial the learned judge has found that the position was exactly even, ie
that any preponderance in the plaintiff’s favour had disappeared. That being
the case the plaintiff must necessarily fail, as he has not discharged the onus
which is upon him. No doubt the defendant would equally have failed if he
had been the claimant and had tried to establish, as a substantive part of his
case, the alternative version which he tried to prove in answer to that of the
plaintiff. But as he was not the claimant, that consideration is quite
immaterial. It is quite sufficient for his purpose if he can satisfy the court that
the plaintiff has not established his case and the learned judge has so found.
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According to the plaintiff the staff at Cycle & Carriage told him that the
motorcar was not from the UK. When he asked them for verification they
told him to write to their headquarters. The plaintiff then wrote to Mercedes
Benz Germany and received confirmation that the motorcar was registered
in Singapore. The plaintiff then e-mailed Daimler Chrysler South East Asia
in Singapore. The plaintiff received a letter dated 5.11.2003 (exh P1) from
Daimler Chrysler South East Asia confirming that the motorcar was made
for the purpose of the Singapore market and registered in Singapore. The
plaintiff did not produce any documentary evidence relating to the
correspondences or e-mails with Mercedes Benz Germany; he did not give
any reasons for the non-production of the same. The only documentary
evidence purporting to show that the motorcar was not from the UK is P1.
What is the weight to be accorded to P1? The makers of P1 were not
called. Learned counsel for the plaintiff submitted that this was owing to
the fact that both the signatories of P1 had already left the company and
could not be located. No reason or explanation was given as to why the
plaintiff did not call any officer from Cycle & Carriage Malaysia or Daimler
Chrysler South East Asia Singapore to testify on the authenticity of P1 and
to verify the fact that the motorcar was not imported from the UK.
Even if P1 were to be accepted at face value, it can only be surmised
that the motorcar was registered in Singapore. It does not preclude the
possibility that the motorcar may have been imported from the UK to
Singapore prior to its importation into Malaysia. Be that as it may, other
than P1 there is no evidence to show that the motorcar was not imported
from the UK. DW1 and DW2 were cross-examined extensively on the
importation documents. However, there was nothing to show that these
documents were invalid or otherwise improper. Weighing the evidence of
DW1 and DW2 and all the documents evidencing the importation of the
motorcar from the UK to Malaysia, the Court is more inclined to accept that
the motorcar was imported from the UK. Since the plaintiff was questioning
the authenticity or validity of the importation documents, the plaintiff ought
to have called officers from the Royal Customs and Excise Department, the
Ministry of International Trade and or the Jabatan Pengangkutan Jalanraya
to give evidence. There is no basis to question the validity of the
importation documents as the plaintiff did not call anyone from the relevant
authorities (Dato’ Hj Nik Mahmud Daud v Bank Islam Malaysia Bhd [1998]
3 CLJ 605 (CA); Lim Bua v Ng Kian Heng [1993] 2 CLJ 461). At all times
the onus lies on the plaintiff to prove that the importation documents were
invalid; on this score the plaintiff has plainly failed to discharge the burden
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of introducing evidence to show that the motorcar was not imported from
the UK.
In conclusion, the plaintiff’s contention that the motorcar is not of
merchantable quality has not been proven. Whilst it has been established
that the 1st defendant represented to the plaintiff that the motorcar was
imported from the UK, the Court have been left in a state of doubt as to
whether the motorcar was not imported from the UK. Accordingly, the
plaintiff’s claim is dismissed. Costs of RM6,000.00 each to the 1 st and 2nd
defendants.
(VERNON ONG)
JUDGE
HIGH COURT MALAYA
JOHOR BAHRU
DATED:
30TH SEPTEMBER 2010
COUNSEL
Lim Chi Chau – Tetuan Karpal Singh & Company, No. 67, Jalan Pudu Lama, 50200 Kuala
Lumpur - for Plaintiff.
Wan Idi Amin bin Wan Ibrahim – Tetuan Adliza Subra And Partners, No. 27-2-1, Jalan Medan
Putra 1, Medan Putra Business Centre, Bandar Manjalara, 52200 Kuala Lumpur - for First
Defendant.
Ng Kian Pin – Tetuan Zaid Ibrahim & Co., Suite 31.01 Level 31, Johor Bahru City Square, 106108 Jalan Wong Ah Fook, 80000 Johor Bahru - for Second Defendant.
VO-j-22-185-2003-2/mj
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