Bm City Realty and Construction Sdn Bhd v Merger Insight Builders Sdn Bhd dan 1 Lagi (P-02(C)(W)-802-04/2019)

the appellant’s Notice of Motion in Encl. 102 dated 10.3.2020;

the appellant’s Affidavit in Support affirmed by Tan Ee Seng on 9.3.2020;

the first respondent’s Affidavit in Reply affirmed by Tan Aik Wai on 14.5.2020; and

the appellant’s Affidavit in Reply affirmed by Tan Ee Seng on 29.5.2020. Rayuan Sivil No: P-02(C)(W)-802-04/2019 3 [3] Parties have filed their respective Written Submission together with their Bundle of Authorities. Parties as well had made their oral submissions before us. We thank for their able submissions, both oral and written. [4] The appellant’s application to admit fresh evidence was premised on section 69 of the Courts of Judicature Act 1964 and Rule 7(3A) of the Rules of the Court of Appeal 1994, which provides:

“Hearing of appeals

Appeals to the Court of Appeal shall be by way of rehearing, and in relation to such appeals the Court of Appeal shall have all the powers and duties, as to amendment or otherwise, of the High Court, together with full discretionary power to receive further evidence by oral examination in court, by affidavit, or by deposition taken before an examiner or commissioner.

The further evidence may be given without leave on interlocutory applications, or in any case as to matter which have occurred after the date of the decision from which the appeal is brought.

Upon appeals from a judgment, after trial or hearing of any cause or matter upon the merits, the further evidence, save as to matters subsequent as aforesaid, shall be admitted on special grounds only, and not without leave of the Court of Appeal.

The Court of Appeal may draw inference of fact, and give any judgment, and make any order which ought to have been given or made, and make such further or other orders as the case requires.

The powers aforesaid may be exercised notwithstanding that the notice of appeal relates only to part of the decision, and the powers may also be exercised in favour of all or any of the respondents or parties Rayuan Sivil No: P-02(C)(W)-802-04/2019 4 although the respondents or parties have not appealed from or complained of the decision.” “Power of Court to amend, admit further evidence, or draw inferences of fact

7.

The Court shall have all the powers and duties, as to amendment or otherwise, of the appropriate High Court, together with full discretionary power to receive further evidence by oral examination in Court, by affidavit, or by deposition taken before an examiner or Commissioner.

Such further evidence may be given without leave on interlocutory applications, or in any case as to matters which have occurred after the date of the decision from which the appeal is brought.

Upon appeals from a judgement, after trial or hearing of any cause or matter upon the merits, such further evidence, save as to matters subsequent as aforesaid, shall be admitted on special grounds only, and not without leave of the Court.

At the hearing of the appeal further evidence shall not be admitted unless the Court is satisfied that －

at the hearing before the High Court or the subordinate court, as the case may be, the new evidence was not available to the party seeking to use it, or that reasonable diligence would not have made it so available; and

the new evidence, if true, would have had or would have been likely to have had a determining influence upon the decision of the High Court or the subordinate court, as the case may be. Rayuan Sivil No: P-02(C)(W)-802-04/2019 5

The Court may draw inferences of fact, and give any judgment, and make any order which ought to have been given or made, and make such further or other orders as the case requires.

The powers aforesaid may be exercised notwithstanding that the notice of appeal relates only to part of the decision, and such powers may also be exercised in favour of all or any of the respondents or parties, although such respondents or parties have not appealed from or complained of the decision.” Background Facts [5] The appellant, the defendant in the Court below was the developer for a development project known as ‘BM City Mall’. Via a letter of award dated 25.9.2013, the appellant appointed the 2nd respondent as the main contractor for a project valued at RM104,600,000.00 and known as “Cadangan Membina 1 Blok Bangunan 23 Tingkat Kompleks Bercampur Yang Mengandungi:

Kedai/pejabat (40 unit) dan Kios (32 unit) - Podium Tingkat

Tempat Letak Kereta & Motosikal (5 Tingkat) - Podium Tingkat 2-6;

Kemudahan Rekreasi, Kolam Renang, Jacuzzi (1 Tingkat) -

3 Blok Suite Perniagaan 528 Unit (15 Tingkat) - Tingkat 8-22 Di atas Lot 1323, Jalan Perda Selatan, Mukim 7 Seberang Perai Tengah, Pulau Pinang. Rayuan Sivil No: P-02(C)(W)-802-04/2019 6 (hereinafter referred to as “the Project”) [6] The 2nd respondent in turn via a letter of award dated 01.11.2013 appointed the 1st respondent as its sub-contractor for the main building works of Podium and Tower - Blocks A, B and C valued at RM37,391,474.05. In the course of carrying out its contractual obligations, the 1st respondent had brought into the Project site the necessary tools, equipment, plants and machineries as listed in Schedule A of the 1st respondent’s Amended Statement of Claim (hereinafter referred as “the Tools”). [7] On 11.04.2015, the 2nd respondent’s employment under the main contract was terminated by the appellant. As a result of the said termination, the subcontract between the 2nd respondent and the 1st respondent was terminated consequently. Accordingly, the 1st respondent was requested by the 2nd respondent to demobilise from the Project site together with all its tools, equipment, plants and machineries. [8] However, the appellant had prevented the 2nd respondent and/or its agents, employees, representatives from entering the Project site to demobilise or remove the Tools from the Project site. [9] Although both the 2nd respondent and the 1st respondent had written to inform the appellant that the 1st respondent was the rightful owner of the Tools and had requested the appellant to return the Tools to the 1st respondent, the appellant had refused to do so. Rayuan Sivil No: P-02(C)(W)-802-04/2019 7 [10] Instead of returning the Tools to the 1st respondent, the appellant retained and/or used them for 17.5 months to complete the Project. Upon completion of the Project, the appellant returned the Tools to the 1st respondent in 2016. [11] The 1st respondent instituted a suit in Penang High Court against the appellant for tort of conversion and/or detinue on 04.04.2016. The appellant brought a Third Party action against the 2nd respondent for indemnity. [12] The trial took place from 13.08.2018 until 16.08.2018 and from 10.12.2018 until 14.12.2018. [13] On 29.03.2019, the learned High Court Judge delivered her decision allowing the 1st respondent’s claims against the appellant with costs and dismissed the appellant’s claim against the 2nd respondent with costs. The appellant is ordered to pay to the 1st respondent the followings:

Damages for loss value on missing items RM 238,262.96

(ii) Damages for loss value on items recovered RM1,541,769.10

(iii) Damages for loss of rental value RM3,029,390.10

(iv) Cost to engage valuer RM 92,220.00

Exemplary damages RM 250,000.00 Total Judgment Sum RM5,151,642.16 Rayuan Sivil No: P-02(C)(W)-802-04/2019 8

(vi) 5% interest per annum on items (i) to (v) above, calculated from the date of judgment until the date of satisfaction. (“hereinafter referred to as “the said Judgment”). Parties Submissions [14] Learned counsel for the appellant submitted that at all material times the appellant was unable to extract the 1st respondent’s Audited Report for the year of 2014, 2015, 2016 and 2017 from the online services of Companies Commission of Malaysia (SSM) with reasonable diligence to be used during the trial as the main reason for their application. Learned counsel submitted that the appellant’s previous solicitor had exercised reasonable diligence in obtaining the Audited Reports. [15] Learned counsel also submitted that the Audited Reports will have significant influence towards the judgment of the Court below as it will show that there are contradicting facts in relation to the immediate possession by the 1st respondent over the plants and machineries which were worth RM2,533,032.12. [16] Learned counsel further submitted that the Audited Reports are incontrovertible evidence as they were not disputed either by the 1st respondent or by the 2nd respondent in their respective affidavit in opposition. [17] To support his argument, learned counsel for the appellant made reference to the case of Tan Kah Khiam v. Liew Chin Chuan & Anor Rayuan Sivil No: P-02(C)(W)-802-04/2019 9 [2006] 2 MLRA 246 a decision of this Court by Gopal Sri Ram JCA (as he then was) at page 251: [11] To what their lordships said in Lubrizol Corp I would add the words of Lord Denning MR in Doyle v. Olby (Ironmongers) Ltd [1969] 2 All ER 119 which we applied in Tenaga Nasional Bhd v. Prorak Sdn Bhd & Anor [1999] 1 MLRA 604; [2000] 1 MLJ 479; [2000] 1 CLJ 553; [2000] 1 AMR 1071: Whenever possible, where there is no risk of sacrifice of principle in the name of justice or at the altar of convenience, we do our best to ensure that a lay client does not suffer because of the mistake of his legal advisers. We do so in the interest of justice. When we act, we always bear in mind what Lord Denning said in Doyle v. Olby (Ironmongers) Ltd [1969] 2 All ER 119 at p 121: We never allow a client to suffer for the mistake of his counsel if we can possibly help it. We will always seek to rectify it as far as we can. We will correct it whenever we are able to do so without injustice to the other side. Sometimes the error has seriously affected the course of evidence, in which case we can at best order a new trial. We have intervened where counsel makes an erroneous admission of law. See, Lee Hock Ning v. Government of Malaysia [1972] 1 MLRA 236; [1972] 2 MLJ 12. But it is not possible where our decision would be in defiance of established principle or where an injustice visited upon the other side. See Visia Finance Bhd v. Expert Credit & Leasing Sdn Bhd & Ors [1997] 2 MLRA 435; [1998] 2 MLJ 705; [1998] 2 CLJ 845. [18] In opposing the application, learned counsel for the 1st respondent submitted that the appellant had failed to prove to this Court that the Rayuan Sivil No: P-02(C)(W)-802-04/2019 10 Audited Reports could not by the exercise of reasonable diligence have been obtained for use at the trial before the High Court. They had more than ample time to extract the Audited Reports from SSM or by obtaining a copy of the Audited Reports from the 1st respondent, either by issuing a notice to produce or by resorting to the procedure of discovery or by asking 1st respondent’s witness to produce the same during the trial. [19] The second objection raised by learned counsel for the 1st respondent was that during the trial, the 1st respondent had produced voluminous copies of original purchase receipts, delivery orders and invoices as proof of purchases of the disputed tools in question. However, the Audited Reports were only secondary evidences. Therefore, the Audited Reports would not have been likely to have had a determining influence upon the decision of the High Court. [20] In the alternative, learned counsel for the 1st respondent submitted that the 1st respondent’s cause of action against the appellant was based on the tort of conversion and/or detinue. It has proven that the 1st respondent was the sub-contractor for the appellant’s project. The 1st respondent brought the Tools into the appellant’s project site at all material time to carry out the construction work. The 1st respondent had the immediate possession of the Tools. The High Court Judge held that the 1st respondent had on balance of probabilities proven their claim to the Tools. [21] Learned counsel for the 2nd respondent opposed the application based on the same reasons posited by learned counsel for the 1st respondent. Learned counsel adopted the first reason which was that the Audited Reports were not new evidence that were discovered or came into Rayuan Sivil No: P-02(C)(W)-802-04/2019 11 existence after the trial had been concluded. Further, these documents can be easily discovered with reasonable diligence. Learned counsel pointed out that the appellant’s averments in their Affidavit in Support at paragraph 30 and 32 where it clearly showed that the appellant only conducted the search on 10.2.2020, almost one year after judgment was delivered by learned High Court Judge, which was on 29.3.2019. [22] The ground of objection was that the Audited Reports will not in any way had a determining influence upon the decision of the High Court Judge. Learned counsel argued that the Audited Reports should not be admitted as it has no probative value. Instead, these documents would not in any way support the appellant’s case and it is a clear departure from the appellant’s own pleadings. Learned counsel further argued that if the Audited Reports were accepted as evidence at this appellate stage, that will severely prejudiced the respondents which cannot be compensated with costs. [23] In Chai Yen v. Bank of America National Trust & Savings Association [1980] 2 MLJ 142, the Federal Court through the judgment of Chang Min Tat FJ said: “The principles to be applied for the reception of fresh evidence have been stated by Denning L.J. (as he then was) in Ladd v. Marshall at page 149: “To justify the reception of fresh evidence or a new trial, three conditions must be fulfilled: first, it must be shown that the evidence could not have been obtained with reasonable diligence for use at the trial; secondly that evidence must be such that, if given, it would probably have an important influence on the result of the case, though it need not be decisive; thirdly the evidence must be such as Rayuan Sivil No: P-02(C)(W)-802-04/2019 12 is presumably to be believed, or in other words, it must be apparently credible though it need not be incontrovertible.” These principles as so stated have been consistently followed and have now received the approval of the House of Lords in Skone v. Skone & Anor. See also Leng Lan (f) v. S.M. Yesudian and Shaik Sahied bin Abdullah Bajarie v. A.R.A. Mootoo Carpen Chitty at page 21. Enough, we think, has been said to show that the applicant could not have satisfied the first requirement. Failure to satisfy this first requirement is sufficient for the dismissal of the application: Lau Foo Sun v. Government of Malaysia.” [24] On the jurisdiction to admit fresh evidence, this had been dealt with extensively by Abdul Malik Ishak JCA in Datuk Seri Panglima Mohd Sari bin Datuk Hj Nuar v. Vee Seng Development Sdn Bhd & Ors [2009] 6 MLJ 643 which warrant reproduction: “[16] The jurisdiction to admit fresh evidence begins with the case of Ladd v Marshall [1954] 3 All ER 745, a decision of the English Court of Appeal with a coram of Denning, Hodson and Parker LJJ. All the three Lord Justices wrote separate judgments. Of importance would be the judgment of Denning LJ. There Denning LJ laid down the principles for the reception of fresh evidence at p 748 in this way: In order to justify the reception of fresh evidence or a new trial, three conditions must be fulfilled: first, it must be shown that the evidence could not have been obtained with reasonable diligence for use at the trial: second, the evidence must be such that, if given, it would probably have an important influence on the result of the case, although it need not be decisive: third, the evidence must be such as Rayuan Sivil No: P-02(C)(W)-802-04/2019 13 is presumably to be believed, or in other words, it must be apparently credible, although it need not be incontrovertible. [17] And according to three Malaysian Court of Appeal cases, the conditions stipulated in Ladd v Marshall are to be read cumulatively and not disjunctively. See Ing Merchant Bank (Singapore) Ltd & Anor v Dato’ Mohamed Anuar bin Embong [2001] 4 MLJ 461 (CA); Maju Holdings Sdn Bhd v Fortune Wealth (H-K) Ltd and other appeals [2004] 4 MLJ 105; [2004] 4 CLJ 282 (CA): Maxisegar Sdn Bhd v Silver Concept Sdn Bhd [2005] 5 MLJ 1 (CA). [18] And if the appellant defendant fails to satisfy one condition, he fails altogether. [19] It must be emphasised that the discretion to admit fresh evidence is entirely that of the court to whom the application is made (Kok Fook Sang v Juta Vila (M) Sdn Bhd & Ors [1996] 2 MLJ 666 (CA)). [20] Statute wise, there are three statutes to refer to. Firstly, it is O 55 r 5A of the Rules of the High Court 1980 (‘RHC’) which states as follows: 5A Restriction on fresh evidence (O 55 r 5A) At the hearing of the appeal fresh evidence shall not be admitted unless the Judge is satisfied that ̶ ̶

At the hearing before the subordinate court the new evidence was not available to the party seeking to use it, or that reasonable diligence would not have made it so available; and

The fresh evidence, if true, would have had or would have been likely to have had a determining influence upon the decision of the subordinate court. Rayuan Sivil No: P-02(C)(W)-802-04/2019 14 [21] Secondly, it is s 69 of the Courts of Judicature Act 1964 (Act 91) (Revised 1972) which enacts that: 69 Hearing of appeals

Appeals to the Court of Appeal shall be by way of re-hearing, and in relation to such appeals the Court of Appeal shall have all the powers and duties, as to amendment or otherwise, of the High Court, together with full discretionary power to receive further evidence by oral examination in court, by affidavit, or by deposition taken before an examiner or commissioner.

The further evidence may be given without leave on interlocutory applications, or in any case as to matters which have occurred after the date of the decision from which the appeal is brought.

Upon appeals from a judgment, after trial or hearing of any cause or matter upon the merits, the further evidence, save as to matters subsequent as aforesaid, shall be admitted on special grounds only, and not without leave of the Court of Appeal.

The Court of Appeal may draw inferences of fact, and give any judgment, and make any order which ought to have been given or made, and make such further or other orders as the case requires.

The powers aforesaid may be exercised notwithstanding that the notice of appeal relates only to part of the decision, and the powers may also be exercised in favour of all or any of the respondents or parties, although the respondents or parties have not appealed from or complained of the decision. Rayuan Sivil No: P-02(C)(W)-802-04/2019 15 [22] Thirdly, it is r 7 of the Rules of the Court of Appeal 1994 which states as follows: 7 Power of Court to amend, admit further evidence, or draw inference of fact

The Court shall have all the powers and duties, as to amendment or otherwise, of the appropriate High Court, together with full discretionary power to receive further evidence by oral examination in Court, by affidavit, or by the deposition taken before an examiner or Commissioner.

Such further evidence may be given without leave on interlocutory applications, or in any case as to matters which have occurred after the date of the decision from which the appeal is brought.

Upon appeals from a judgment, after trial or hearing of any cause or matter upon the merits, such further evidence, save as to matters subsequent aforesaid, shall be admitted on special grounds only, and not without leave of the Court.

At the hearing of the appeal further evidence shall not be admitted unless the Court is satisfied that ̶ ̶

At the hearing before the High Court or the subordinate court, as the case may be, the new evidence was not available to the party seeking to use it, or that reasonable diligence would not have made it so available; and

The new evidence, if true, would have had or would have been likely to have had a determining influence upon the Rayuan Sivil No: P-02(C)(W)-802-04/2019 16 decision of the High Court or the subordinate court, as the case may by.

The Court may draws inferences of fact, and give any judgment, and make any order which ought to have been given or made, and make such further or other orders as the case requires.

The powers aforesaid may be exercised notwithstanding that the notice of appeal relates only to part of the decision, and such powers may also be exercised in favour of all or any of the respondents of parties, although such respondents or parties have not appeal from or complained of the decision. [23] In an unreported dissenting judgment in the Court of Appeal, Teoh Kien Peng & Anor v Thannimalai a/l Subramaniam [2008] MLJU 403, I had occasion to consider the phrase ‘special grounds’ employed in r 7(3) of the Rules of the Court of Appeal 1994 and this was what I said at pp 27 to 28: [49] The phrase ‘special grounds’ appears in r 7(3) of the Rules of the Court of Appeal 1994. The old English RSC O 59 r 10(2), also makes reference to the phrase ‘special grounds’ and the relevant part provides as follows: ‘no such further evidence (other than evidence as to matters which have occurred after the date of the trial or hearing) shall be admitted except on special grounds’. Hale LJ writing for the English Court of Appeal in Hertfordshire Investments Ltd v Bub & Anor [2000] 1 WLR 2318 had this to say at p 2324 in regard to the phrase ‘special grounds’. This was what His Lordship Hale LJ said: Special grounds, as we all know, meant that the fresh evidence satisfied the principles in Ladd v Marshall [1954] 1 WLR 1489: that is, that it could not have been obtained with Rayuan Sivil No: P-02(C)(W)-802-04/2019 17 reasonable diligence for use at trial; if given it would probably have had an important influence on the result of the case; and it is apparently credible although not incontrovertible; although there are exceptional cases in which those principles do not apply, for example those involving the welfare of children. There are, of course, strong reasons for this approach, which has a long pedigree. It is in the interests of every litigant and the system as a whole that there should be an end to litigation. People should put their full case before the court at trial and should not be allowed to have a second bite at the cherry without a very good reason indeed.” [25] Nevertheless, we have reminded ourselves that the question of whether fresh evidence should be received or not is a matter purely for the discretion to be exercised judicially by the judges themselves especially at the appeal stage where it is by way of a re-hearing. For that, and having considered the parties’ written and oral submissions, all the cause papers filed herein and the authorities cited before us, we are of the view that we are not inclined to exercise our discretion in granting the prayer prayed for by the appellant. [26] We agreed with learned counsel for both the respondents on both the issues ventilated before us. On the first issue on due diligence, we agreed that the appellant had failed to prove to this Court that the Audited Reports could not by the exercise of reasonable diligence have been obtained for use at the trial before the High Court. The appellant’s Affidavit in Reply at paragraphs 31 and 32 which we reproduce below, admitted to facts which Rayuan Sivil No: P-02(C)(W)-802-04/2019 18 pointed to a lack of diligence. The appellant could not rely on the fault of their previous solicitor for this: “31. Saya telahpun membuat carian melalui perkhidmatan dalam talian Suruhanjaya Syarikat Malaysia untuk mengekstrak Laporan Audit Responden Pertama bagi tahun 2014, 2015, 2016 dan 2017 pada 10.02.2020 selepas perbicaraan Mahkamah Tinggi tamat ….”;

Pada semua masa yang material, saya tidak dapat mengesktrak Laporan Audit Responden Pertama bagi tahun 2014, 2015, 2016 dan 2017 daripada perkhidmatan dalam talian Suruhanjaya Syarikat Malaysia dengan usaha yang munasabah untuk digunakan pada masa pendengaran di hadapan Mahkamah Tinggi dan peguamcara Perayu yang terdahulu, Tetuan Salehuddin Saidin & Associates telahpun terlepas masa utnuk mengemukakan Laporan Audit tersebut difailkan sebagai Ikatan Dokumen Bersama.” [27] It is very clear to us that paragraph (a) of sub-rule (3A) Rule 7 of the Court of Appeal Rules 1994 was not satisfied by the appellant in that the Audited Reports were not available to the party seeking to use it or that reasonable diligence would not have made it so available. In Maxisegar Sdn Bhd v Silver Concept Sdn Bhd [2005] 5 MLJ 1 decided as follows: [4] The poser of this court to grant leave to admit fresh evidence at the hearing of the appeal is governed by s 69 (3) of the Courts of Judicature Act 1964 and r 7(3A) of the Rules Court of Appeal 1994 are generally known as the Ladd v Marshall [1954] 3 All ER 745 conditions. It is settled by various decided cases that the three conditions are cumulative and conjunctive in effect and are not disjunctive in that all the conditions must be fulfilled before such leave to admit fresh evidence be granted. The said three conditions were also referred to by Thomson LP in Lam Soon Cannery Co v Hooper & Co [1965] 2 MLJ 148 at p 148 as follows: Rayuan Sivil No: P-02(C)(W)-802-04/2019 19 It is common ground that applications of this sort are regarded by this court with considerable circumspection and the principles that have been applied in relation to them are stated as follows by Lord Denning in the case of Ladd v Marshall: To justify the reception of fresh evidence or a new trial, three conditions must be fulfilled: first, it must be shown that the evidence could not have been obtained with reasonable diligence for use at the trial; secondly, the evidence must be such that, if given, it would probably have an important influence on the result of the case, though it need not be decisive; thirdly, the evidence must be such as is presumably to be believed or in other words, it must be apparently credible, though it need not be incontrovertible. I pause to observe that these conditions are not alternative; they are cumulative. See also the judgment of Suffian FJ in Lau Foo Sun v Government of Malaysia [1970] 2 MLJ 70 at p 71 and Chai Yen v Bank of America National Trust & Savings Association [1980] 2 MLJ 142 at p 143. [5] In the present case before us, we found that the appellant’s supporting affidavits did not explain fully why the evidence could not have been made available in the court below and why it could not by the exercise of reasonable diligence have been obtained for use at the trial there. This requirement is clearly stated in the English Supreme Court Practice 1997, Vol 1 at p 1004 as follows: 59/10/14 Mode of application for leave to adduce further evidence…. …The application must be supported by an affidavit deposing to the facts relied upon in support of the application. In particular the Rayuan Sivil No: P-02(C)(W)-802-04/2019 20 affidavit should explain fully why the evidence was not called in the court below, and where the Ladd v Marshall criteria apply, why it could not, by the exercise of reasonable diligence, have been obtained for use at the trial… [6] We found that the appellant’s supporting affidavits did not state these relevant facts in order to fulfill the requirements for the admission of the so-called fresh evidence before us. [7] The appellant had also failed to satisfy the first test. As admitted by the appellant in para 16 of the affidavit of Gan Ee Chin affirmed on 13 March 2002, the company accounts were available as a public document in the registry of companies then. The company accounts were clearly in the public domain. They were not hidden away by the respondent or for that matter by any other party but for the reason that it was not so made available by the appellant. This evidence could have been made available during the trial if due diligence was taken. If the appellant had conducted a simple search at the registry of companies the said company accounts could have been easily obtained for use at the trial. This the appellant had failed to do. The various reliefs claimed by the respondent in its pleadings were also plain and clear. In our judgment, the appellant could not have been misled by the respondent’s pleadings and claims. It was therefore the duty of the appellant to bring forward its whole case at once in the trial and not to bring them forward as and when it thought appropriate to do so. To a question from the court, counsel for the appellant admitted that they had misled it at the trial. [8] In our judgment, had the appellant exercised reasonable diligence the fresh evidence now sought to be adduced at the hearing of this appeal could have been obtained during the trial of this action in the court below. We therefore found that there was not merit in the appellant’s application before us to adduce the fresh evidence and we had accordingly dismissed the application with costs.” Rayuan Sivil No: P-02(C)(W)-802-04/2019 21 [28] We found that the appellant had also failed to satisfy the second test that the Audited Reports, if true, would have had or would have been likely to have had a determining influence upon the decision of the High Court. The learned trial Judge in her judgment held that the 1st respondent was the owner of the Tools in question. The 1st respondent had adduced the best evidence, such as the original copy of the purchase orders, the delivery orders and the invoices to prove their ownership to the Tools. By having these documents produced before the trial judge, that will make the Audited Reports a mere secondary evidence. That will not influence the trial judge to accept and to rely on the Audited Reports, which are secondary evidence to support the appellant’s claim of ownership of the Tools. Therefore we agreed that the Audited Reports would not have been likely to have had a determining influence upon the decision of the learned trial Judge. [29] Based on the aforesaid, we find no merit in the appellant’s application in Encl. 102. The application was dismissed with cost of RM5,000.00 subject to payment of allocatur fees. Dated: 27 August 2020. signed (KAMARDIN BIN HASHIM) Judge Court of Appeal Malaysia Rayuan Sivil No: P-02(C)(W)-802-04/2019 22 Counsel For the Appellant: Walter Teoh (Alex Gan Yi Yang, with him) Messrs Winston Ng & Teoh For the 1st Respondent: Eg Kaa Chee (Teoh Kar Li, with him) Messrs Rajah Lau & Associates For the 2nd Respondent: K. C. Chan (Toh Chia Hua, with him)