DI DALAM MAHKAMAH TINGGI MALAYA DI JOHOR BAHRU
DI DALAM NEGERI JOHOR DARUL TAKZIM
GUAMAN SIVIL NO. (MT-1) 22-677-2008
ANTARA
AMBANK (M) BHD
…PLAINTIF
DAN
MASRI BIN ABDUL RAHMAN
…DEFENDAN
DI DALAM MAHKAMAH TERBUKA
DI HADAPAN Y.A. TUAN VERNON ONG
HAKIM
GROUNDS OF JUDGMENT
The plaintiff’s claim against the defendant is for RM24,049.60 being
the amount owing under a hire purchase agreement of a motor vehicle. In
its defence and counterclaim the defendant is seeking (i) a declaration that
the defendant return the motor vehicle to the plaintiff; (ii) the refund of
RM15,678.00; (iii) damages, interest and costs.
The facts
The undisputed facts are as follows. On 24.1.2003 the defendant
entered into a hire purchase agreement with the plaintiff whereby the
defendant agreed to hire from the plaintiff a second-hand Proton Wira
1.3GL (M) bearing registration number JFB936. The motor vehicle was
registered in the defendant’s name on 11.2.2003.
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In early 2005 the defendant was informed by a used car dealer that
the motor vehicle was a ‘kereta potong’ (half-cut and welded car). The
defendant then sent the motor vehicle to PUSPAKOM for an inspection.
According to the PUSPAKOM report the motor vehicle is a half cut. The
defendant stopped using the motor vehicle and informed the plaintiff to take
back the motor vehicle and to refund the monies paid by the defendant.
The defendant also stopped making the monthly payments under the hire
purchase agreement. The motor vehicle was returned to the plaintiff on
3.5.2010. The plaintiff subsequently sent the motor vehicle to PUSPAKOM
for an inspection on 3.5.2010 which also confirmed that it was a half cut.
Plaintiff’s case
The plaintiff did not adduce any evidence at the trial of the action.
Instead the plaintiff relied wholly on the pleadings and the bundles of
documents filed. The plaintiff denies that there was any false
representation or breach by the plaintiff under s 7 of the Hire Purchase Act
1967.
Defendant’s defence and counterclaim
It is contended that the motor vehicle hired by the defendant was a
used car which was not roadworthy because it was a half cut. The motor
vehicle was not of merchantable quality because it could not be used on
the road (s 16 Sale of Goods Act 1967; s 7(2) Hire Purchase Act 1967).
There was therefore a total failure of consideration which invalidated the
hire purchase agreement. The defendant is counterclaiming for loss of use
of the motor vehicle at RM30.00 per day from 15.1.2005 and RM10,000.00
for mental suffering after becoming aware of the status of the motor
vehicle.
Findings of the Court
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,
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then the other party need not adduce any evidence. In this respect it is the
plaintiff who must establish their case. If they fail to do so, it will not do for
the plaintiff to say that the defendant have not established their defence
(Selvaduray v 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
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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.
No evidence was adduced by plaintiff in support of its claim. The
plaintiff has failed to satisfy the burden of introducing evidence. Absent
such evidence, the Court is unable to draw any findings on the amount
actually due and owing by the defendant under the HPA; the Court cannot
be called upon to speculate on such sums as not only was there no oral
evidence, there was insufficient documentary material to enable the Court
to draw an inference as to the amount actually due and owing. There was
no evidence to show the number of instalments paid by the defendant, the
number of outstanding instalments due and owing, and a statement of
accounts setting out the computation of the amount claimed. In short, the
plaintiff has failed to discharge the original burden of proof. For the
foregoing reasons the plaintiff’s claim is dismissed with costs of
RM5,000.00.
Turning now to the defendant’s counterclaim. The defendant’s
evidence in chief that the motor vehicle has been surrendered to the
plaintiff was not challenged or contradicted under cross-examination. In
the premises the Court finds that the motor vehicle has been repossessed
by the plaintiff. As such the defendant’s prayer for the declaratory order is
redundant. It is also contended that that the hire purchase agreement is
invalid for failure of consideration since the motor vehicle is not of
merchantable quality. On this issue it is important to note that the motor
vehicle has been registered in the defendant’s name. Further, the
defendant has had possession and use of the motor vehicle for almost two
years of hire during which the defendant also effected payments of the
monthly instalments under the hire purchase agreement. In the
circumstances it cannot be said that there is a failure of consideration.
When the defendant chose to return the motor vehicle to the plaintiff in
early 2005 the defendant by his conduct elected to repudiate the hire
purchase agreement; the plaintiff accepted the repudiation when it
accepted the return of the motor vehicle. The defendant’s claim for loss of
use is unsustainable. He admitted under cross-examination that he had
been using the motor vehicle and that there were no problems with the
motor vehicle. He also said that after PUSPAKOM confirmed that the
motor vehicle was a half cut he stopped using the motor vehicle and
stopped paying the monthly instalments to the plaintiff. As the defendant
qua hirer stopped paying the monthly instalments, he could not have
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suffered any loss of use for the period in question. The defendant’s also
said that after he discovered that the motor vehicle was a half cut he was
always in a state of fear and worry. Apart from the defendant’s bare
assertion there is no corroborative evidence to support his assertion. On
the totality of the evidence the Court finds that the defendant’s counterclaim
for the refund of the monies paid under the hire purchase agreement, the
claim for loss of use and damages for mental suffering is unsubstantiated
and uncorroborated. In the premises the defendant’s counterclaim is
dismissed with costs of RM5,000.00.
(VERNON ONG)
JUDGE
HIGH COURT MALAYA
JOHOR BAHRU
DATED:
21ST SEPTEMBER 2010
COUNSEL
Marzuki bin Mohd – Tetuan Ibrahim Nik Junainah & Associates, Room 6.13, 6th Floor, Menara
TJB, No. 9 Jalan Syed Mohd Mufti, 80000 Johor Bahru - for Plaintiff.
Bimalarajah a/l S Kanagasabai – Tetuan K.B. Rajah & Co., Rooms 5B & C, 5th Floor, Foh
Chong Building, Jalan Ibrahim, 80000 Johor Bahru - for Defendant.
VO-j-22-677-2008/mj
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