Alupole (M) Sdn. Bhd. v Metal One Engineering Sdn. Bhd. (B-08-49-03/2023)

Enclosure 1 dated 8/3/2023 is the Applicant Notice of Motion for leave to appeal against the decision of the Klang High Court dismissing the Applicant's appeal against the decision of the Klang Sessions Court Judge on 28/9/2022.

For ease of reference, the Appellant shall be hereinafter referred to as the Plaintiff and the Respondents as the Defendant in this Judgment.

On 26/2/2019, an Australian Company named Liquip Victoria has awarded the Plaintiff a contract to supply aluminium alloys amounting USD 78,425 (RM 335,580.58) via Purchase Order dated 26/2/2019.

The contract requires the Plaintiff to ship twenty (20) Aluminium Alloys Flood Lighting Columns [AAFLCs] to Mobil Oil Micronesia Incorporation at Majuro Bulk Plant, Marshall Island, Australia by 12/4/2019.

The Plaintiff appointed the Defendant to supply twenty (20) Aluminium Alloys Flood Lighting Columns [AAFLCs] pursuant to a Purchase Order dated 21/3/2019 [hereinafter referred to as the said “First PO" in order for the Plaintiff to fulfil the order made by Liquip Victoria.

The First PO was then substituted by the Purchase Order dated 25/3/2019 (hereinafter referred to as the “Second PO”) due to a typographical error. The contract price pursuant to the Second PO was RM147,550. 00. The payments were to be made in four tranches which were as follows:

First payment of 30% (RM44,265.00);

(ii) Second payment of 30% (RM44,265.00);

(iii) Third payment of 35% (RM51,642.50); and

(iv) Fourth payment of 5% (RM7,377.50). [7] The Second PO sets out the following scope of work for the Defendant:

to prepare metal specimen and 20 sets of AAFLC; and

(ii) to deliver the said 2 specimens for Post Weld Heat Treatment (“PWHT”) Test. [8] The Plaintiff had made the first and second payments amounting to a total sum of RM88,530.00 to the Defendant via invoice number 2222 dated 22/3/2019 (RM44,265.00) and invoice number 2231 dated 29/4/2019 (RM 44,265.00) respectively. [9] It is the Plaintiff’s case that the Defendant was supposed to have delivered the AAFLCs by late May or early June 2019. Unfortunately, this did not happen which resulted in considerable delay and eventually in September 2019, the Plaintiff had to procure the AAFLCs from a company in China. [10] It is the Defendant’s case that in June 2019, the Defendant had completed the fabrication work for 20 sets of AAFLC and had successfully performed the Factory Acceptance Test (“FAT”) in the presence of the Plaintiff’s representatives. The Defendant has also sent the AAFLC’s specimens for the PWHT process and the test had been carried out. Defendant have performed their obligations under the PO and there was no total failure of consideration. The invoice number 2242 dated 22/7/2019 for the outstanding sum of RM34,642.50 due to the Defendant was still not paid. [11] On 30/6/2020, the Plaintiff filed a suit against the Defendant in the Klang Sessions Court for a refund of deposit of RM44,265.00, a refund of the second stage payment of RM44,265.00 and a reimbursement of RM96,834.04 for new the order of AAFLC which the Plaintiff had to obtained from China, interest and costs. [12] The Defendant filed their defence and its counterclaim against the Plaintiff claiming for a declaration that the amended PO is unlawfully terminated by the Plaintiff and the sum of RM34,642.50 is to be paid to the Defendant from the date of the judgment. [13] On 28/9/2022, the learned Sessions Court Judge dismissed the Plaintiff's claim and allowed the counterclaim of RM34,642.50 with costs of RM4,855.00. [14] Dissatisfied, in October 2022, the Plaintiff filed an appeal to the Klang High Court. [15] On 7/2/2023 the learned High Court Judge dismissed the Plaintiff’s appeal and affirmed the Sessions Court decision. [16] By reason that the adjudged sum awarded is below the RM250,000.00 threshold pursuant to section 68(1)(a) of the Courts of Judicature Act 1964, the Plaintiff applied for leave to appeal to this Court. Sessions Court Decision [17] On 28/9/2022, after 5 days of trial, the learned Sessions Court Judge dismissed the Plaintiff’s claim and granted the Respondent's counterclaim. The reasons stated amongst others, are as follows (page 489 Enclosure 25 Ikatan Teras Bersama): “[44] Based on the evidence, this Court was of the view the the plaintiff cannot deny the fact that the defendant had completed the fabrication. The fact that the Plaintiff’s submissions regarding the delay of the fabrication and the delivery of the poles clearly pointed out that the defendant had completed the AAFLC poles. [45] Thus, this Court agreed with the defendant’s submissions that the Plaintiff ought to be estopped by conduct or by principle of approbation and reprobating. [49] Based on the evidence above, this Court accepted the defendant’s submissions that there was no challenges nor complaints by the Plaintiff in relation to the progress report prepared and FAT conducted by the defendant. [50] Therefore, since there was neither objection nor dispute from the Plaintiff when the FAT was conducted, this Court was of the view that the defendant has completed the fabrication work of AAFLC poles and distinctly, the Plaintiff’s submission is devoid of merits.” High Court Decision [18] At the High Court, the learned judge dismissed the Plaintiff’s appeal and affirmed the Sessions Court decision. However, the appellate judge had not provided written grounds for her judgment. Questions of Law [19] The Plaintiff raised nine (9) grounds in support of the questions of law which are briefly summarised as follows: S.1: Bahawa Hakim telah terkhilaf dari segi fakta dan undang-undang apabila menolak tuntutan Pemohon terhadap Responden. S.2: Bahawa Hakim telah terkhilaf dari segi fakta dan undang-undang apabila membenarkan tuntutan balas Responden dengan membuat deklarasi bahawa Pesanan Belian bertarikh 25.03.2019 telah dibatalkan oleh Pemohon secara tidak sah di sisi undang-undang. S.3: Bahawa Hakim telah terkhilaf dari segi fakta dan undang-undang apabila telah membenarkan tuntutan balas Responden sebanyak RM34,642.50 dengan kos sebanyak RM4,855.00 dan faedah sebanyak 5% setahun dari tarikh penghakiman sehingga penyelesaian penuh. S.4: Bahawa Hakim telah terkhilaf dari segi fakta dan undang-undang apabila membuat dapatan Pesanan Belian bertarikh 21.03.2019 telah digantikan dengan Pesanan Belian bertarikh 25.03.2019. S.5: Bahawa Hakim telah terkhilaf dari segi fakta dan undang-undang apabila telah membuat dapatan bahawa Responden telah menyempurnakan kerja-kerjanya menurut spesifikasi dalam Pesanan Belian bertarikh 21.03.2019. S.6: Bahawa Hakim telah terkhilaf dari segi fakta dan undang-undang apabila membuat dapatan bahawa fabrikasi Aloy Aluminium Flood Lighting Columns telah dilengkapkan oleh Responden. S.7: Bahawa Hakim telah terkhilaf dari segi fakta dan undang-undang apabila mengenepikan keterangan-keterangan dan bukti-bukti bahawa "Factory Acceptance Test" belum berjaya dilakukan oleh Responden. S.8: Bahawa Hakim telah terkhilaf dari segi fakta dan undang-undang apabila mengenepikan keterangan-kerterangan dan bukti-bukti bahawa "Post Welding Heat Treatment" gagal dilengkapkan oleh Responden. S.9: Bahawa Hakim telah terkhilaf dari segi fakta dan undang-undang apabila mendapati bahawa tiada total "failure of consideration" yang melayakkan Pemohon membatalkan Pesanan Belian bertarikh 21.03.2019. Our Decisions [20] The Plaintiff’s application for leave is made pursuant to sections 68 Court of Judicature Act 1964 which reads: Non - appealable matters

No appeals shah be brought to the Court of Appeal in any of the following cases;

when the amount or value of the subject-matter of the claim (exclusive of interest) is less than two hundred and fifty thousand ringgit, except with the leave of the Court of

where the judgment or order is made by consent of parties;

where the judgment or order relates to costs only, which by law are left to the discretion of the Court, except with the leave of the Court of Appeal;

where, by any written law for the time being in force, the judgment or order of the High Court is expressly declared to be final;

where a High Court dismissed any application for a summary judgment;

where a High Court dismissed any application to strike out any writ or pleading; and

where a High Court allowed any application to set aside a judgment in default.

(Deleted).

No appeal shall lie from a decision of a Judge in Chambers in a summary way on an interpleader summons, where the facts are not in dispute, except by leave of the Court of Appeal, but an appeal shall lie from a judgment given in court on the trial of an interpleader issue. [21] In Country Garden Danga Bay Sdn Bhd v. Tribunal Tuntutan Pembeli Rumah & Anor [2020] 4 CLJ 865, speaking through Harmindar Singh Dhaliwal JCA (as he then was) held as follows: [7] Applications for leave to appeal to the Court of Appeal are governed by s. 68(1)(a) of the CJA 1964 which effectively states that no appeal shall be brought to the Court of Appeal when the amount or value of the subject-matter of the claim (exclusive of interest) is less than RM250,000, except with the leave of the Court of Appeal. [8] Where appeals are filed without leave having been obtained, and where leave is required, the court has no jurisdiction to hear the appeal (see Harcharan Singh Sohan Singh v. Ranjit Kaur S Gean Singh [2011] 3 CLJ 593 ("Harcharan Singh ")). The requirement for leave serves as a filter against frivolous or unmeritorious proceedings (O'Reilly v. Mackman [1983] 2 AC 237). It must follow that no appeal can be filed against the decision of the Court of Appeal regarding leave as otherwise the filter principle would be defeated (Lam Kong Co Ltd v. Thong Guan Co Pte Ltd [2000] 1 CLJ 1; [2000] 1 MLJ 129 ("Lam Kong ")) [22] It is trite that an appellate court will not interfere with the finding of the court below unless it can be shown the lower court had erred. In order to succeed for leave to appeal, the Plaintiff must meet the threshold set out in Pang Hon Chin v. Nahar Singh [1986] 2 MLJ 145 where Edgar Joseph Jr J (as he then was) held as follows: “The circumstances in which leave to appeal will be granted would include cases where the applicant is able to demonstrate a prima facie case of error (see (1907) 123 LT Jo 202) or if the question is one of general principle decided for the first time or a question of importance upon which further argument and a decision of the Federal Court would be to the public advantage.” [23] This principle was further echoed in the Court of Appeal case of United Oriental Assurance Sdn Bhd v. Penang Medical Centre Sdn Bhd [1999] 2 MLJ 542 wherein: • The applicant, United Oriental Assurance Sdn Bhd, was the second defendant in the court below. The court had held that applicant was generally liable to the respondent as insurer per se. The respondent had filed a claim against the appellant and the first defendant for a sum less that than RM250,000. Thus, this application for leave to appeal to the Court of Appeal. • The applicant contended that leave to appeal should be given on grounds that the decision of the trial judge affects a fundamental principle of law, is of vital importance in the public interest, involves a serious and important issue of law, and there is a question of general principle where further argument before a higher tribunal would be of public advantage. • The Court of Appeal through Abu Mansor JCA (as he then was) delivering the judgment of the court found that there had been no error by the court below and therefore no reason to interfere with its finding. The application for leave was dismissed. [24] Having read the learned Sessions Court Judge’s ground of judgment, we find there is sufficient appreciation of the evidence in its entirety by the trial judge in arriving at the conclusion that the Defendant had fulfilled all its obligations. [25] There is unequivocally no prima facie error as the facts and law have been appropriately and inclusively considered and rightfully decided upon by the trial judge and appellate judge. We are mindful that the merits of the leave application are, in any event irrelevant. [26] The Plaintiff had also failed to raise any questions of law but instead merely advance questions of fact which have been appropriately addressed in detail by the trial judge. [27] In the premises, we unanimously find that the Plaintiff had failed to meet the principles enunciated by the court in Pang Hong Chin (supra). We find no merits in the Plaintiff’s application to warrant this Honourable Court to exercise its powers to interfere with the finding of the court below. [28] For reasons stated above, the Applicant/Plaintiff application is dismissed with costs of RM10,000.00 The costs are subject to allocatur fees. Date: 27 November 2023 - sgd - Azmi bin Ariffin Judge Court of Appeal Malaysia Counsel For the Appellant :

YM Raja Saidatul Akhma Raja Lope

Cik Amelia Edreena Azmir [Lope Maizura, Petaling Jaya] For the Respondents :

Datuk Joshua Kevin,

Leng Wie Mun

Encik Reuben Ong [Kevin & Co. Kuala Lumpur]