Kgs Consortium Sdn. Bhd. v Northern Agritrack Sdn. Bhd. (JA-12ANCvC-16-09/2020)

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IN THE HIGH COURT OF MALAYA AT KUALA LUMPUR (COMMERCIAL DIVISION) CIVIL APPEAL NO.: JA-12ANCVC-16-09/2020

Lampiran

Lampiran A) yang telah dijual kepada mana-mana pihak dan menyerahkan semula kesemua 118 unit kontena yang tertunggak kepada Plaintiff di tapak simpan Plaintiff dalam masa 3 hari dari perintah di sini. The Plaintiff also prayed for other consequential orders including damages for misrepresentation, fraud, loss of business opportunities to be assessed by the Court and paid by both Defendants to the Plaintiff, and for costs of the suit. [7] The Defendants, in particular D1 in its statement of defence and counter-claim (“SOD”) prayed for various orders which are too numerous and repetitive to be listed herein. Essentially, the Defendants’ counter-claim is for the balance sum of RM60,000.00 for the sale of 158 units of containers and for additional payment of the sum of RM481,548.00 being the amount allegedly expended by D1 in procuring services of third parties for the purpose of moving and shifting the containers by using forklifts, cranes, and for workers arranged by D1. D1 issued invoices dated 27.04.2019, 02.05.2019 and two other invoices dated 31.05.2019, showing the breakdown of services allegedly rendered to the Plaintiff by D1. THE ISSUES DETERMINED BY THE SESSIONS COURT [8] The pivotal issues that can be gleaned from the pleadings and submissions are: i) Whether having paid for the 138 units of containers the Plaintiff is entitled to a declaratory order with respect to the legal and beneficial ownership of the 138 units of containers and other consequential reliefs following such declaratory order. ii) Whether the agreement for sale of the containers was for 138 units or 158 units. This is a question which requires a finding of facts by the trial judge. iii) If the Sessions Judge made a finding that the agreement was for the purchase of 158 containers, the question which follows is whether D1 is entitled to retain the balance 118 units (after the Plaintiff had collected 20 units) due to non-payment of the balance sum of RM60,000.00 claimed by D1. iv) Whether D1 is entitled to claim for the sum of RM481,548.00 for services allegedly rendered to the Plaintiff by D1 and whether the alleged expenses have been proven by admissible evidence. v) Whether the Plaintiff is entitled to its claim against the Second Defendant (“D2”) and whether there are sufficient evidence and circumstances to justify the lifting of the “corporate veil” against D2. THE PRINCIPLE APPLICABLE TO APPEALS AFTER A FULL TRIAL [9] The Federal Court in the case of He-Con Sdn Bhd v Bulyah Ishak & Anor (2020) 7 CLJ 271 held as follows: “[112] We reiterate what the English Surpreme Court in the Henderson case (supra) considered what the “plainly wrong” test meant, and explained it as follows: 62 What matters is whether the decision under appeal is one that no reasonable judge could have reached …” [10] (i) Thus, the test to be applied by this Court is whether the Sessions Judge was plainly wrong in her finding of facts, and as explained by the Federal Court above, this Court has to consider whether the decision of the Sessions Judge is so wrong that no reasonable Judge would have come to the same findings. (ii) The Federal Court in UEM Group Bhd v Genisys Integrated Engineers Pte Ltd & Anor (2010) 9 CLJ held as follows: “[40] Speaking on appellate intervention, we feel a need to remind that a trial judge has the advantage over an appellate court in hearing the witness and observing his demeanour. Thus, a finding on a witness’s credibility based on his demeanour is a personal opinion of a trial judge who had the audio-visual advantage of the performance of witnesses. It should not, ordinarily, be disturbed at the appellate stage. This is especially so in the instant case where the trial judge had found that Seow, the only witness put forth by GIE, was not a witness of truth. The trial judge had given reasons as to why he found that ‘Seow’s evidence is bristled with inconsistencies and half truth’. We think n the circumstances of the reasons given by the trial judge, the findings are entitled to great respect.” FINDINGS OF THIS COURT [11] With respect to paragraph (a) of the final order, the decision is an issue of law. Since it is undisputed that the purchase price for the 138 units of containers has been fully settled, it is trite law the legal title to those containers has been transferred to and is vested with the Plaintiff, (see section 19 of the Sale of Goods Act 1957). [12] Paragraphs (b) and (c) of the final order of the Session Court are consequential orders following from the declaratory order of ownership of the 138 units of containers. Having fully paid the purchase price, the Plaintiff was fully entitled to claim possession of the containers. Therefore, the orders injuncting the Defendants from parting with or disposing of the containers belonging to the Plaintiff are properly a natural consequence of the declaration of ownership of the containers. [13] As for lifting of the corporate veil against D2, the Sessions Judge had addressed her mind to the control of D1 by D2 who was the only Director in D1 and concluded that being the controlling mind he ought to be made liable for the consequences of the acts of D1. [14] With respect to the issue of whether the agreement of purchase was for 158 units or 138 units as alleged by the Plaintiff, the learned Sessions Judge found the Plaintiff’s version to be more credible. When she dismissed the D1’s counter claim including the claim for the balance purchase price of RM60,000.00 it can be inferred that she found that the actual agreement was for the sale of 138 units. She also found the Defendants’ witness to be unreliable, and she preferred the credibility of the Plaintiff’s witnesses. [15] It is trite law that an appellate judge ought not disturb the finding of facts by the trial judge even though the appellate judge might have come to a different conclusion on the facts (see the Federal Court decision in Ng Hoo Kui v Wendy Tan Lee Peng and Ors (2020) 10 CLJ). The appellate judge not having had the audio-visual advantage of the trial judge ought not disturb the findings of fact by the trial judge unless the trial judge was plainly wrong. [16] Even taking the Defendants case at its highest, assuming the agreement was in fact for he purchase of 158 units and the Plaintiff still owes D1 the sum of RM60,000.00, the remedy available to the Defendants would be to file a claim for the balance sum which D1 did in its counter-claim. [17] Failure to pay the purchase price for the balance 20 units did not give D1 an in “in rem” claim over the 138 units for which the price has been fully settled. There is nothing in the Defendants’ counter-claim or in the invoices by D1 which contains a retention of title provision/clause. Thus, in the absence of a retention of title clause, the title to the containers is automatically transferred to and vested in the Plaintiff. [18] With respect to the Defendant’s counter-claim for the sum of RM481,548.00 for alleged services render to the Plaintiff, the Sessions Judge found that D1 had failed to provide evidence that the sum claimed for expenses incurred for removing the containers was actually incurred by D1. D1 only produced copies of invoices without producing the original invoices. The invoices were in Bundle C. D1 did not produce any receipt by the contractors, who were alleged to have moved the containers to a different site nor were the contractors called to give evidence on behalf of D1. [19] For the above reasons, it cannot be said that the finding of facts on this issue by the Session Judge was plainly wrong. In fact, I am in agreement with her decision on this issue. [20] For the above reasons, I find the Sessions Judge did not make any appealable error nor was her decision plainly wrong. As such, there is no basis for this Court to reverse the findings of facts or the decision of the Sessions Judge. Therefore, this appeal is dismissed with costs of RM3,000.00. Dated 22nd April 2024 ……………..t.t……………... Ahmad Murad Bin Abdul Aziz Judge High Court of Malaya Kuala Lumpur COUNSEL FOR THE APPELLANTS/DEFENDANTS: DAVID RAGUMAREN SOLICITORS FOR THE PETITIONER: TETUAN G. RAGUMAREN & CO COUNSEL FOR THE RESPONDENT/PLAINTIFF: JIMMY GOH CHOON SOLICITORS FOR THE RESPONDENT: TETUAN ISMAIL, KHOO & ASSOCIATES Cases Referred to: ➢ He-Con Sdn Bhd v Bulyah Ishak & Anor (2020) 7 CLJ 271 ➢ UEM Group Bhd v Genisys Integrated Engineers Pte Ltd & Anor (2010) 9 CLJ ➢ Ng Hoo Kui v Wendy Tan Lee Peng and Ors (2020) 10 CLJ Legislation Referred to: ➢ Companies Act 2016 Decision Date : 26.05.2023