De Kota (M) Sdn. Bhd. v Bell-Ksl Sdn. Bhd. (BA-22NCvC-347-09/2021)

This is a case I presided over after a full trial. It involves two parties who previously had a long and cordial business relationship that eventually soured, leading them to seek resolution in the Court.

The Plaintiff’s claim was for the sum of RM80,833.33, comprising the charges for services rendered in repairing the 1664kW AC Generator, a steam turbine generator (Steam Turbine Generator) (exhibit P6), and renting a 1000kW generator set (exhibit P7) (Generator Set) to the Defendant. Additionally, the Plaintiff seeks an 22/08/2023 09:52:55 BA-22NCvC-347-09/2021 Kand. 73 amount of RM11,598.08 as late payment interest from the Defendant.

The Defendant’s counterclaim sought the amount of RM1,671,299.99, for alleged damages, expenses, and losses resulting from the damage caused to the Steam Turbine Generator by the Plaintiff and for the Plaintiff’s failure to fulfill the 6-month warranty.

The Plaintiff’s claim was originally filed in the Magistrate’s Court at Petaling Jaya. Due to the Defendant’s counterclaim exceeding a million, the matter was subsequently transferred to this Court for determination.

Below is a synopsis of the case presented by both the Plaintiff and the Defendant in this matter.

The Plaintiff was involved in the trading, servicing, and renting of generator sets. Upon the Defendant's request, the Plaintiff provided services to repair a 1664kW Steam Turbine Generator located at the Defendant’s palm oil mill at Linggi, Negeri Sembilan (the Mill). Additionally, the Plaintiff also rented a Generator Set to the Defendant at the said Mill.

The Plaintiff issued a Quotation, Delivery Order, and Invoice for the provided services, all of which the Defendant had acknowledged receiving through their employees. Each invoice contains terms, including the requirement for payment within 30 days and 1.5% interest per month, among others.

The Defendant still owes the Plaintiff a total sum of RM80,833.33 for the services rendered in fixing the Steam Turbine Generator and renting the Generator Set, which includes late payment interest of

The Plaintiff returned and installed the serviced Steam Turbine Generator at the Defendant's Linggi Mill without conducting testing and commissioning, as the steam turbine and/or machines at the Defendant's Linggi Mill were not yet ready. The Defendant was reminded multiple times that testing and commissioning were necessary before the Steam Turbine Generator could be operational. The Plaintiff later revisited the Defendant's Mill but was unable to conduct testing and commissioning due to the same reasons.

The Defendant informed the Plaintiff that they attempted to start and use the Steam Turbine Generator, but it failed to function. Subsequently, the Defendant informed the Plaintiff that the Steam Turbine Generator had burned and become inoperative.

The Plaintiff stated that on 01.04.2020, the Plaintiff could only compile an Investigation Report using the images provided by the Defendant. The root cause of the burn and/or damage to the Steam Turbine Generator could only be determined through a post-mortem forensic examination. The Plaintiff had communicated to the Defendant that arranging for post-mortem forensics was only possible after obtaining permission to operate during the Movement Control Order (MCO) from the Ministry of International Trade and Industry (MITI).

The Plaintiff asserted that the Plaintiff was denied the opportunity to investigate and/or repair the burnt Steam Turbine Generator because the Defendant had engaged a third party to conduct an investigation on the burnt/damaged Steam Turbine Generator without informing the Plaintiff.

In light of the above, the Plaintiff claimed that the Defendant was estopped by their own actions from claiming damages against the Plaintiff as follows: a. Any alleged six (6) month warranty, if it existed, has been rendered void due to the Defendant's actions. b. The losses claimed by the Defendant in their counterclaim are the direct result of their own actions in attempting to start and use the Steam Turbine Generator, despite the Plaintiff's repeated reminders regarding the necessity of conducting testing and commissioning beforehand. c. The losses claimed by the Defendant in their counterclaim are the outcome of the Defendant's own actions in seeking services and a new generator set from third parties without the Plaintiff's knowledge and without seeking assistance from the Plaintiff.

Therefore, the Defendant's actions have disrupted the chain of causation, and the Plaintiff will rely, among other defenses, on the defense of novus actus interveniens.

The Defendant admitted engaging the Plaintiff’s services to repair the Steam Turbine Generator for the Defendant’s Mill in Linggi, Negeri Sembilan. Based on the Plaintiff’s quotation dated 20.01.2020, the Defendant issued a Purchase Order dated 05.02.2020 for the said services.

The Defendant contended that the Plaintiff completed the repair works on 13.03.2020, as requested, with a 6-month warranty. However, barely a week after the operation, on 21.03.2020, the Steam Turbine Generator broke down, and the Defendant promptly informed the Plaintiff of the incident.

Considering the substantial amount of palm crops in the Mill and in order to mitigate losses during the repair of the Steam Turbine Generator, the Defendant had no recourse but to rent a Generator Set from the Plaintiff. On 23.04.2020, the Plaintiff issued an invoice for the rental of the Generator Set, totaling RM66,000.00, and delivered the rental Generator Set to the Mill.

The Defendant contended that the Plaintiff submitted a report dated 01.04.2020, indicating two potential causes for the burnt Steam Turbine Generator, namely a short circuit and a faulty diode. However, the report lacked sufficient details to identify the root cause of the problem, preventing the Plaintiff from resolving the issue with the burnt Steam Turbine Generator.

The Defendant claimed that due to the Plaintiff's inability to provide a solution for the burnt Steam Turbine Generator, the Defendant subsequently engaged Helmtech Engineering (M) Sdn. Bhd. (Helmtech), an independent entity, to investigate the matter. Based on Helmtech's “Alternator Inspection Report and the Alternator Final Inspection Report”, it was determined that the issue resulted, among other factors, from insulation failure and the accumulation of dust, and also an unbalanced voltage drop in the main rotor winding. The Defendant then retained Helmtech to repair the burnt Steam Turbine Generator, paying RM92,425.50 for the repair.

Owing to the high operational costs incurred while using the rental Generator Set, the Defendant acquired a new generator set from Jasa Aman Engineering on 14.04.2020, for RM136,000.00.

Through a letter dated 18.04.2020, the Defendant notified the Plaintiff of the termination of the rental for the Plaintiff's Generator Set, citing the acquisition of a new generator set by the Defendant. The Defendant also communicated that, as the Defendant had not received the Steam Turbine Generator report from the third party, all payments due to the Plaintiff would be withheld pending the receipt of said report.

The Defendant's counterclaim amounted to RM1,671,219.99, as the Defendant alleged to have incurred losses and damages due to the burn and/or damage to the Steam Turbine Generator, as well as the Plaintiff's failure to fulfill the 6-month warranty provided.

The Defendant maintained that the Defendant was not liable to make any payments to the Plaintiff, attributing the losses and damages incurred to the Plaintiff's failure to fulfill the 6-month warranty as promised.

The Plaintiff called 5 witnesses. They are as follows: a. ERajeswarie a/p Thurisingam - PW1 b. Sia Kwee Wah - PW2 c. Chong Kok Kong - PW3 d. Kok Yaw Tung - PW4 e. Balamurugan a/l M.Raju -

The Defendant called 3 witnesses and they are as follows: a. Teh Chee Fei - DW1 b. Anbalagan a/l Martam @ Subramaniam - DW2 c. Shri Parameswaran a/l Cholai Kavandar - DW3

The issues to be tried agreed by parties for the Court’s determination are as follows: a. Whether the Steam Turbine Generator had burnt resulting from the act or omission of the Plaintiff or the Defendant. b. Whether the Plaintiff had given a six (6) month warranty for the Steam Turbine Generator to the Defendant:

1.1. If yes, based on the issue in paragraph (a) above, whether the Defendant is estopped from depending on the warranty because of the Defendant’s own actions.

1.2. If yes, based on the issue in paragraph (a) above, whether the Defendant’s own actions had broken the chain of causation.

1.3 If yes, based on the issue in paragraph (a) above, whether the Defendant had suffered losses as a result of the damage and/or burnt Steam Turbine Generator. c. Based on the findings of the issues above, whether the Plaintiff/Defendant is entitled to their own claims as pleaded in their pleadings.

After a thorough and careful examination of all the evidence presented and thoughtfully considering the written and oral submissions by both the Plaintiff and the Defendant, I concluded that the Plaintiff had successfully established its case on a balance of probabilities. Conversely, the Defendant had failed to demonstrate its counterclaim on a balance of probabilities. Therefore, I ruled in favour of the Plaintiff, granting their claim, and dismissed the Defendant’s counterclaim with costs of RM50,000.00. My reasons are stated below.

Primarily the Plaintiff’s claim is for the payment for the services rendered to service a Steam Turbine Generator and for the rental of a 1000kW diesel Generator Set to the Defendant.

It is undisputed that the Defendant had requested the Plaintiff to service the Steam Turbine Generator located at the Defendant’s Mill at Linggi. The Plaintiff had issued a quotation dated 20.01.2020 for the amount of RM35,000. Subsequently, the Defendant issued the Purchase Order dated 05.02.2020. Thereafter, the Plaintiff issued the Proforma on 06.02.2020. The Plaintiff had picked up the Steam Turbine Generator on 15.02.2020 and returned the said generator on 29.01.2020, after being serviced. The Defendant paid 30% of the amount quoted, i.e. RM 10,500 on 05.03.2020 leaving a balance of RM24,500 remaining unpaid.

The Linggi Mill remained idle for a period following a fire incident back in 2019. Therefore, when the Plaintiff collected the Steam Turbine Generator for servicing, they asserted that it was in a dusty condition with traces of bugs’ nests around it.

Upon installing Steam Turbine Generator, the Plaintiff claimed that they have informed the Defendant that the Steam Turbine Generator cannot be used until testing and commissioning is conducted. Hence, the Plaintiff claimed that the Plaintiff was present at the Mill on 29.02.2020, 13.03.2020, and 16.03.2020 to conduct the testing and commissioning, but they were not able to conduct the testing and commissioning because they were informed by the Defendant’s workers, DW3 and Yuvarani (Rani), that the Mill was not ready.

On 18.03.2020, PW5 received a call from DW3 asking why the Steam Turbine Generator could not produce electricity and PW5 had informed DW3 that the excitor coil was not connected and therefore Steam Turbine Generator was not ready to be used. On 21.03.2020 DW3 informed PW3 that the Steam Turbine Generator had burnt.

It is also undisputed that the Defendant then requested to rent a 1000kW Generator Set, which was sent to the Defendant’s Mill on 23.03.2020. The Plaintiff had also issued a quotation and invoice for the amount of RM66,000, which was received and acknowledged by the Defendant. However, the said amount remained unpaid.

The Defendant took the position that: a. the Steam Turbine Generator was burnt due to the Plaintiff’s faulty service. b. the Plaintiff had failed to fulfill the 6 months warranty allegedly given. c. as a result of the Plaintiff’s faulty service the Defendant had to rent the Generator Set from the Plaintiff. d. as a result of the burnt Steam Turbine Generator, the Defendant suffered losses, damages and incurred expenses of RM1,671,219.99.

Due to the above reasons, the Defendant refused to pay the Plaintiff the balance amount for the service of the Steam Turbine Generator and the rental of the Generator Set.

That was the essence of the case: the issues and disputes between the parties are quite straightforward. A. Whether the Steam Turbine Generator had burnt due to the act or omission of the Plaintiff or the Defendant

Before proceeding with the evidence analysis, it is essential to understand the function and process of the Steam Turbine System and the Generator Set. Here is a summary of the relevant witness testimonies concerning these systems. a. As PW3 and PW5 explained, the Defendant engaged the Plaintiff to service a Steam Turbine Generator, which is normally paired with a steam turbine. The Steam Turbine Generator relies on the steam turbine for generating electricity. The steam turbine operates by utilising steam from a biomass waste boiler that burns materials such as palm fruit fiber shells and husks. The entire steam turbine system was interconnected with a main switchboard via power cables, facilitating the distribution of the electricity generated by the Steam Turbine Generator to the Defendant's Linggi Mill. b. Additionally, as pointed out by PW3 and PW5, another power source is necessary to synchronise with the steam turbine for boiler startup. This supplementary power source could be a smaller generator set, like the 400kW generator set, which co-exists alongside the steam turbine system to initiate the boiler's operation. c. For the Steam Turbine Generator to produce electrical output, it requires connecting two (2) wires (excitor coil) within the generator. Otherwise, the Steam Turbine Generator can run but will not produce any electrical output for the intended use at the Defendant's Linggi Mill. d. The electrical output generated by the Steam Turbine Generator is sufficient to power the Defendant's Linggi Mill machinery during production. e. On the other hand, a Generator Set, which consists of a diesel engine and an AC generator, is primarily used for emergency backup and temporary power supply. The Generator Set operates on diesel fuel. f. Depending on its capacity, the Generator Set can serve various purposes: • A 400kW generator set can run the Defendant's Linggi Mill or machines (not in production) and synchronise with the steam turbine to start up the boiler for production purposes. • A 1000kW generator set can power the Defendant's Linggi Mill or machines during production.

In determining the party at fault, it is crucial to note that it remains an undisputed fact that no testing and commissioning were conducted after the installation of the Steam Turbine Generator at the Mill on 29.02.2020. The two key issues to be resolved are whether the Plaintiff was obligated to perform the testing and commissioning after the Steam Turbine Generator’s installation and whether the Plaintiff’s inability to conduct the testing and commissioning was indeed due to the Defendant’s Mill not being prepared, as alleged by the Plaintiff. Whether the Plaintiff was obligated to conduct the testing and commissioning after the installation of the Steam Turbine Generator

On the issue whether the Plaintiff had to conduct the testing and commissioning after the installation, I find that the Defendant had taken a contradictory stand.

The Defendant’s witness, DW3, Shri Parameswaran, who was the Senior Mill Engineer at the material time, contended that the Plaintiff had already conducted the testing and commissioning for the Steam Turbine Generator, claiming that the Plaintiff had delivered, installed, and performed the necessary testing and commissioning as stated in the Field Service Job Sheet No. DKJ 01566 dated 29.02.2020 (Service Job Sheet).

DW3 stated that he interpreted the "Test Run" mentioned in the Service Job Sheet as referring to the testing of the Steam Turbine Generator at the Plaintiff's site, rather than the testing and commissioning at the Defendant's Mill after its coupling with steam turbine. However, DW3 admitted that no testing and commissioning of the Steam Turbine Generator was conducted at the Linggi Mill on 29.02.2020.

The Plaintiff had denied that the testing and commissioning were done before the delivery and installation date. The Defendant asserted that such contention was untrue and substantially inconsistent with the documentary evidence tendered.

DW3’s evidence appeared inconsistent with DW1's testimony on this issue. DW1, Teh Chee Fei, the CEO of the Defendant, had acknowledged that the Defendant was aware that the Plaintiff's representative was to perform the testing and commissioning of the Steam Turbine Generator after its installation on 29.02.2020.

Nevertheless, during cross-examination, DW3 demonstrated inconsistent statements in his evidence, contradicting his earlier testimony. Suddenly, he asserted that the Plaintiff was obligated to conduct the testing and commissioning of the Steam Turbine Generator on 29.02.2020. According to his new claim, the Plaintiff was supposed to carry out all tasks together, including delivery, installation, testing, and commissioning on the said date.

It is apparent, the Defendant in their submission had acknowledged the significance of conducting testing and commissioning after the installation of the Steam Turbine Generator, agreeing that it was a common practice followed by all machine suppliers.

Though the Defendant had taken a contradictory stand on the requirement to conduct the testing and commissioning work on the Steam Turbine Generator before it can be used for production, I find the evidence by the Plaintiff’s witness was apparent about the neccessity to conduct the testing and commissioning on the Steam Turbine Generator when it was delivered and installed at the Mill.

It is evident from the testimony of PW5 that the scope of the Plaintiff's services to the Defendant on the Steam Turbine Generator encompassed the testing and commissioning process. PW5, Balamurugan, the technician representing Selatan Motor Recoil Sdn. Bhd., acting as the Plaintiff's sub-contractor, testified that the testing and commissioning phase involved assessing the Steam Turbine Generator's functionality after its coupling with the steam turbine. Typically, customers initiated this step to examine the serviced and/or repaired Steam Turbine Generator through both "free-load" and "on-load" tests. During this process, they monitored and evaluated the Steam Turbine Generator's performance until it met satisfactory standards. PW5 emphasised the significance of this testing and commissioning step in ensuring the Steam Turbine Generator's compatibility with other machines in the Mill.

Therefore, I find there was a requirement for the Plaintiff to conduct the testing and commissioning of the Steam Turbine Generator after the installation at the Mill was completed. Whether the Plaintiff’s inability to conduct the testing and commissioning was indeed due to the Defendant’s Mill not being prepared, as alleged by the Plaintiff

The subsequent question to address was whether the Plaintiff’s inability to conduct the testing and commissioning was due to the Defendant’s Mill not being prepared, as asserted by the Plaintiff.

The Plaintiff asserted that they made three (3) attempts to conduct the testing and commissioning on the following dates: 29.02.2020,

13.03.2020, and 16.03.2020. However, they were informed by the Defendant that the Mill was not prepared on all three occasions, preventing them from carrying out the designated task.

The Defendant claimed that the Plaintiff’s allegation claiming that the Plaintiff was unable to conduct the testing and commissioning three times due to the unpreparedness of the Linggi Mill was untrue.

During the trial, PW3, one Chong Kok Kong, the director, and shareholder of the Plaintiff's company, provided his testimony. He stated that on 29.02.2020, PW5 informed him that they were only able to install the Steam Turbine Generator at the Mill. However, they were unable to conduct testing and commissioning due to the unpreparedness of the steam turbine and/or other machines at the Linggi Mill. Subsequently, the Defendant's clerk, Rani, informed PW3 that the Plaintiff could return on 13.03.2020 to carry out the testing and commissioning works for the Steam Turbine Generator. Based on this information, PW3 instructed PW5 to return to the Defendant's Linggi Mill for the necessary testing and commissioning.

However, on the evening of 13.03.2020, PW5 informed PW3 that the Defendant's Mill was once again not ready for the Plaintiff to carry out the testing and commissioning works. In response, Rani once again informed PW3 that the Plaintiff could return on 16.03.2020 for the testing and commissioning works, assuring that the Mill would be prepared for the Plaintiff on that date. Trusting this information, PW3 once again instructed PW5 to return to the Defendant's Mill on 16.03.2020 for the testing and commissioning works. Unfortunately, the testing and commissioning works were not carried out as planned, as PW3 was informed that the Defendant's Mill was not ready again.

Later, on 21.03.2020, PW3 received a call from DW3, who informed him that the Steam Turbine Generator had caught fire and was no longer operational.

The Defendant did not challenge PW3’s evidence about his communication with Rani, and DW1 confirmed the presence of a staff member named Rani.

PW5's evidence was consistent with PW3's testimony. He stated that he had informed PW3 that he could only install the Steam Turbine Generator on 29.02.2020 at the Defendant's Mill. However, he was unable to conduct the testing and commissioning works as the steam turbine and/or other machines were not ready at the Mill.

PW5 was then instructed by PW3 to return to the Mill on 13.03.2020 to conduct the testing and commissioning works. However, upon waiting until night on the said date, he was informed by DW3 that the steam turbine and/or other machines at the Mill were not ready. Consequently, PW5 had to leave without being able to conduct the testing and commissioning. PW5 contended that he informed DW3 about the importance of conducting the testing and commissioning and also mentioned that the Steam Turbine Generator would not function as the two excitor coils were not connected for the purposes of testing and commissioning.

On 16.03.2020, upon receiving instructions from PW3, PW5 again returned to the Mill to conduct the testing and commissioning work on the Steam Turbine Generator. However, after waiting for 10 hours at the Mill, he was again informed by DW3 that the machines at the Mill were not ready. As a result, the testing and commissioning were once again unsuccessful. PW5 reminded DW3 once more that the testing and commissioning must be conducted before the Steam Turbine Generator could be used.

Despite PW5's reminders, DW3 did not comply. On 18.03.2020, DW3 called PW5 to inquire about the Steam Turbine Generator, which was not functioning when they tried to start and use it. PW5 informed DW3 that the two excitor coils were not connected since the testing and commissioning were not done. However, PW5 could not return to the Mill due to the enforcement of the MCO on

18.03.2020. On 21.03.2020, PW5 was informed by PW3 that the Steam Turbine Generator had burnt and could not be used.

In the trial, PW4, one Kok Yaw Tung, an Electrical Chargeman employed by the Plaintiff, testified about his presence at the Mill on 16.03.2020. He was there to install a trimmer/cable trimmer for the diesel Generator Set (No. DP222LB), which had been rented to the Defendant. Additionally, PW4 mentioned that after the installation, his responsibility included synchronising the diesel Generator Set with the steam turbine at the Linggi Mill.

Upon completing the trimmer/cable trimmer installation, PW4 had to wait for the steam turbine to be ready for synchronisation. During this waiting period, PW5 was also present and waiting at the Defendant's Mill to perform his testing and commissioning works on the same steam turbine.

Despite waiting the entire day, PW4 revealed that he could not carry out the synchronisation works on 16.03.2020 due to the unpreparedness of the steam turbine at the Defendant's Linggi Mill.

On both of the mentioned dates, the Defendant stated in certainty that the machines and/or steam turbine at the Defendant's Linggi Mill were fully prepared. This was due to the following reasons: firstly, at least two weeks prior to 15.03.2020 (at least 01.03.2020), which marked the Defendant's Linggi Mill re-opening, all the machines at the Mill had already been tested and commissioned. Secondly, at least 7-10 days before 13.03.2020 (between 29.02.2020 and 03.03.2020), the Defendant's Linggi Mill had been operating the machines, including the conveyor belt, without any additional weight. Lastly, by 16.03.2020, the Defendant's Linggi Mill had commenced production, and the machines were being powered for production by the Steam Turbine Generator and the steam turbine.

During the proceedings, DW3 refuted receiving information from PW5 regarding the need to refrain from starting the Steam Turbine Generator before testing and commissioning. DW3 could not recall if he had contacted PW5 on 18.03.2020 to inquire about the lack of electricity supply for the Steam Turbine Generator, and if PW5 had informed him that the two excitor coils were not connected due to pending testing and commissioning. However, it is pertinent to note that, DW1 conceded that he was aware that DW3 had contacted the Plaintiff on 18.03.2020 as there was no output of electricity from the Steam Turbine Generator on 18.03.2020. Therefore, I find PW5’s evidence that he received a call from DW3 on 18.03.2020 regarding the Steam Turbine Generator not working was consistent with DW1’s evidence, hence what PW5 had stated in his testimony regarding this issue was true.

It is evident that the testimonies provided by DW1 and DW3 were inconsistent. Additionally, I find their statements regarding the commencement of Mill operations to be not only unclear but contradictory. DW1 asserted that the Steam Turbine Generator had burnt on 21.03.2020, approximately a week after it began operating, implying it was put to use on 13.03.2020 or 14.03.2020. Conversely, DW3 repeatedly claimed that production commenced on 16.03.2020, although the new and old machines were run several days before the Linggi Mill’s re-opening. In contrast, the PW5's testimony stated that the excitor coils in the Steam Turbine Generator were not connected, which would mean there would be a lack of electricity output.

Hence, I find that PW5’s testimony, wherein he had received a call from DW3 on 18.03.2020, informing him of the malfunction of the Steam Turbine Generator, remained congruent with DW1’s account. This congruence strengthened the truthfulness of PW5's statement on this matter.

The coherence between the testimonies of PW3 and PW5 was discernible and their credibility appeared stronger. Their assertions that the Plaintiff had made three separate attempts to conduct testing and commissioning on the Steam Turbine Generator at the Defendant’s Mill were further substantiated by PW4's unchallenged testimony, which harmonised with the narratives of PW3 and PW5. Furthermore, the Defendant did not contest the fact that their employee, Rani, had contacted PW3. The assertion made by PW3 that Rani had apprised him of the Mill's unpreparedness for testing and commissioning, specifying return dates of 13.03.2020 and subsequently 16.03.2020, remained unchallenged. Therefore, based on careful consideration of the evidence, I find merit in the Plaintiff’s assertion that they attempted to carry out testing and commissioning on the Steam Turbine Generator on three occasions but were hindered by the unpreparedness of the Mill.

It was established that the process of testing and commissioning was imperative prior to the utilisation of the Steam Turbine Generator. The Plaintiff had informed the Defendant that the two excitor coils were not connected thus the Steam Turbine Generator should not be used before the testing and commissioning. It was apparent that the Plaintiff did not execute the testing and commissioning on 29.02.2020. This omission persisted on 13.03.2020 and 16.03.2020. Nevertheless, the testimonies of DW1 and DW3 confirmed that the Defendant had initiated the operation of the Steam Turbine Generator prior to the Plaintiff's execution of testing and commissioning works.

Therefore, the Plaintiff’s assertion that the Defendant’s act of initiating the machines prior to the testing and commissioning of the Steam Turbine Generator without the Plaintiff’s knowledge had led to the Steam Turbine Generator being burnt, is plausible. Whether the Steam Turbine Generator had burnt due to the act or omission of the Plaintiff

It is also undisputed that the Plaintiff had conducted an initial investigation and subsequently notified the Defendant that determining the root cause for the Steam Turbine Generator to burn would require a forensic investigation. The Plaintiff had voluntarily assumed the responsibility to carry out the said forensic investigation.

Nevertheless, the Defendant had sent the Steam Turbine Generator for investigation to an independent 3rd party, Helmtech Engineering

(M) Sdn. Bhd. (Helmtech). Despite the Plaintiff’s denial of awareness regarding Helmtech’s appointment by the Defendant, the Plaintiff contended that both parties ultimately agreed to conduct a joint inspection on 29.06.2020, aimed at determining the cause for the Steam Turbine Generator’s burn.

It is important to note that DW2, Anbalagan a/l Martam @ Subramaniam, the General Manager of Helmtech, who prepared the investigation report at D9a, informed the Court that Helmtech lacked knowledge of the history of the Steam Turbine Generator, and they reported based on their observations. DW2 confirmed that the issues outlined in paragraphs 1 and 2 of D9a could not be attributed to any failure on the Plaintiff's part. Thus, there were no definitive conclusions indicating that the Steam Turbine Generator burned due to any action or omission by the Plaintiff.

In the course of the proceedings, the learned counsel for the Defendant conceded that no conclusive findings were available to implicate the Plaintiff as the cause of the fault. However, the counsel argued that since the Plaintiff was the last to service the Steam Turbine Generator, the blame should be placed on the Plaintiff. I find such an argument untenable without substantial evidence.

Therefore, based on the evidence presented before this Court, I find that there was no proof to attribute the burning of the Steam Turbine Generator to the Plaintiff’s faulty service, actions, and/or omissions. B. Whether the Plaintiff had given a six (6) month warranty for the

The Defendant asserted that the Plaintiff allegedly offered a 6- month warranty to the Defendant, citing the Defendant’s issuance of Purchase Order No. 61249 to the Plaintiff on 05.02.2020

The Plaintiff contended that a 6- month warranty was not granted to the Defendant based on the following grounds: the Plaintiff’s Quotation No. MQT-11699-1 dated 20.01.2020 did not include such a warranty term for the Steam Turbine Generator service; DW1 unilaterally inserted the “6-month warranty” term in the comments section of the Defendant’s Purchase Requisition Form No 013/20/RV1 dated 20.01.2020, which was subsequently included in the Defendant’s Purchase Order No. 61249 issued on 05.02.2020; despite this unilateral addition, the Plaintiff’s Proforma Invoice No. DKM-P1036 dated 06.02.2020 was devoid of the 6-month warranty term; based on this invoice, the Defendant paid a 30% deposit of RM10,500.00 on 05.03.2020, a normal practice acknowledged by

Having adhered to the terms as stipulated in the said Proforma Invoice dated 06.02.2020, and with the Defendant having subsequently made a partial payment of RM10,500 which was 30% of the total payable sum of RM35,000.00, on 05.03.2020, the Plaintiff contended that the Defendant’s own actions amounted to an acceptance of the conditions set forth in the said Proforma Invoice. In support of its contention, the Plaintiff referred to the case of Mech-Power Generators Pte Ltd v MMC Engineering & Construction Sdn Bhd & Anor [2015] 3 MLJcon 113.

I find that there was insufficient conclusive evidence to establish an agreement between the Plaintiff and the Defendant regarding the provision of a 6-month warranty for the serviced Steam Turbine Generator.

It remained undisputed that the Quotation issued by the Plaintiff did not contain the phrase "warranty 6 months". DW1 admitted that he added this phrase to the Defendant’s Purchase Requisition Form No. 013/20/RV1 dated 20.01.2020 (D8), resulting in his clerk Rani including the phrase "warranty 6 months" in the Defendant’s Purchase Order dated 05.02.2020. However, upon the issuance of Proforma Invoice No. DKM-P10362 dated 06.02.2020 by the Plaintiff, the phrase "warranty 6 months" was removed. Based on this Proforma invoice, the Defendant made a payment of 30%, amounting to RM10,500, on 05.03.2020.

No evidence was presented in this Court to suggest that the Defendant disputed the removal of the phrase "warranty 6 months" or raised the issue promptly. Consequently, the Proforma Invoice, without the 6-month warranty, was considered to have been acknowledged and accepted by the Defendant.

However, the Court also concluded that the Defendant's own actions did not indicate the existence of such an agreement between the parties. Firstly, when the Steam Turbine Generator burnt, no evidence was furnished to indicate that the Defendant exercised its rights to claim the alleged warranty. The Defendant did not communicate any claim for warranty to the Plaintiff, and no evidence supported such a request.

Secondly, in the event of an agreed-upon warranty, there should have been no charges for the Generator Set. However, the Defendant opted to rent the Generator Set and did not request the provision of another generator set to exercise the supposed warranty.

Thirdly, when the Plaintiff issued a Quotation for the rental of the Generator Set at a cost of RM66,000, the Defendant acknowledged and accepted the said Quotation (P2 & P3). DW3 confirmed that the Defendant was aware that charges would apply for the Generator Set rental. Even at this juncture, the Defendant did not raise any objections to the rental charges or express a desire to invoke the warranty, if it indeed existed.

Fourthly, even if such a warranty were to exist, no evidence substantiated an agreement between the parties on the terms of the said warranty.

Therefore, based on the aforementioned considerations, I concluded that there was no 6-month warranty agreed between the parties. I find it was a unilateral decision by the Defendant.

Further, I agree with the Plaintiff’s contention that, irrespective of the circumstances, the Defendant’s own conduct of initiating the Steam Turbine Generator prior to the completion of testing and commissioning would estop the Defendant from relying on the 6- month warranty, even if it were in existence (see: Re Thien Kon Thai [2008] 6 MLJ 278 and section 115 of the Evidence Act 1950).

Furthermore, the Defendant’s own acknowledgment that the Steam Turbine Generator was set in motion before the testing and commissioning also signifies the disruption of the chain of causation. Consequently, it becomes unreasonable to attribute the subsequent damage to the Plaintiff.

Thus, given the absence of evidence linking the Plaintiff’s actions or omission and/or oversights to the burning of the Steam Turbine Generator, any loss experienced by the Defendant (if any) stemming from the burnt Steam Turbine Generator cannot be ascribed to the Plaintiff. C. Whether the Defendant has proven its counterclaim

The Defendant asserted that as a consequence of the burnt Steam Turbine Generator, the Defendant incurred losses totaling RM1,671,219.99. These losses encompassed expenses related to the disposal of fresh fruit branches, the rental of a diesel generator set consuming higher-cost diesel compared to the Steam Turbine Generator, overhead expenses despite the absence of income during the breakdown, compromised oil palm quality leading to lower Deterioration of Bleachability Index (DOBI) and higher Free Fatty Acid (FFA) in the Defendant’s oil, added costs for repairing the burnt Steam Turbine Generator, and the necessity for the Defendant to procure a new generator set from a third party as a loss mitigation measure. Furthermore, the Defendant's anticipated income and projected revenue were hampered.

The Defendant contended that the Plaintiff displayed a lack of diligence in addressing the burnt Steam Turbine Generator, resulting in undue repair delays and production interruptions. Owing to the Plaintiff's unreasonable postponement, the Defendant was compelled to explore alternatives from a third party to curtail losses.

Therefore, the Defendant claimed that the Defendant’s counterclaim for the losses incurred should be allowed.

In the counterclaim, the Defendant provided their own calculations for incurred losses, asserting that those calculations were not bound by a specific formula, as it was based on the Defendant’s course of business per se. By referencing the precedent established in SDS Bakeries Sdn Bhd v Sun Koong Yip Machinery Sdn Bhd [2018] MLJU 1767, the Defendant put forth the argument that they should not be barred from pursuing their claimed losses.

The learned counsel for the Defendant further referred to the case of Five Sun Trading Sdn. Bhd. v. Muhammad Sallehudin Ramli & Ors [2023] MLRH 277 which referred to the case of Bank of Tokyo-Mitsubishi (Malaysia) Bhd v. Sim Lim Holdings Bhd & Ors [2001] 1 MLRH 149. In this case, the High Court decided as follows; “[118] DW1 to DW5 admitted that they did not value the seized goods from the time the goods were seized until the issuance of the offer of compound in May 2018. [119] Learned counsel for the plaintiff submitted that in the absence of any evidence to the contrary to challenge the value of the goods in the invoices, this Court ought to accept the valuation as shown in the invoices produced by the plaintiff during the trial. Dato' Ravendren submitted that although the invoices were marked as "ID", the Court may still decide on their admissibility. He cited as authority the case of Bank of Tokyo-Mitsubishi (Malaysia) Bhd v. Sim Lim Holdings Bhd & Ors [2001] 1 MLRH 149; [2001] 2 CLJ 474 ("Sim Lim Holdings"). [120] In Sim Lim Holdings, Ramly Ali J (as he then was) held that s 73A(2) of the Evidence Act allows for the admittance of documents when the maker is not called if having regards to all the circumstances of the case the Court is satisfied that undue delay or expense would otherwise be cause. His Lordship held that although the documents were marked as "ID", it did not stop the Court from deciding on their admissibility. [121] Section 73A (2) of the Evidence Act empowers a Court to decide on the admissibility of documents at any stage of the proceedings having regard to all the circumstances of the case. Subsections 73A (2), (5) and (6) of the Evidence Act state:

In any civil proceedings, the court may at any stage of the proceedings, if having regard to all the circumstances of the case it is satisfied that undue delay or expense would otherwise be caused, order that such a statement as is mentioned in subsection

shall be admissible as evidence or may, without any such order having been made, admit such a statement in evidence:

notwithstanding that the maker of the statement is available but is not called as a witness; and

notwithstanding that the original document is not produced, if, in lieu thereof, there is produced a copy of the original document or of the material part thereof certified to be a true copy in such manner as may be specified in the order or as the court may approve, as the case may be. ...

For the purpose of deciding whether or not a statement is admissible as evidence by virtue of subsections (1) to (4), the court may draw any reasonable inference from the form or contents of the document in which the statement is contained, or from any other circumstances,...

In estimating the weight, if any, to be attached to a statement rendered admissible as evidence by this Act, regard shall be had to all the circumstances from which any inference can reasonably be drawn as to the accuracy or otherwise of the statement, and, in particular, to the question whether or not the statement was made contemporaneously with the occurrence or existence of the facts stated, and to the question whether or not the maker of the statement had any incentive to conceal or misrepresent facts. [122] The Court in Sim Lim Holdings found that the notices of demand, the AR cards and certificates of posting were admissible as evidence since the documents were part of a transaction or records that were consistent and were issued in the course of business and discharge of professional duty. Ramly Ali J held: At that stage of the proceedings [the trial], all those documents have to be marked as "ID" first, but it does not stop the court from deciding on their admissibility at the end of the trial ie, during submissions stage. Section 73A(2) of the Evidence Act 1950 empowers the court to do so. The said subsection provides for the exercise of the power "at any stage of the proceedings, having regards to all the circumstances of the case". There is nothing to say that those documents cannot be admitted as evidence under s 73A(2) just because they have only been marked as "ID". [123] His Lordship said by virtue of ss 73A(5) and 73A(6) of the Evidence Act, the Court in deciding whether all those documents are to be admitted as evidence considered with reasonable inference "from the form and contents of the document as well as from any related circumstances, as to the accuracy or otherwise of the statement and in particular to the question whether or not the statements or the documents were made contemporaneously with the occurrence or existence of the facts stated”." [emphasis added]

The learned counsel proceeded to submit that with reference to the case of Five Sun Trading Sdn Bhd v. Muhammad Sallehudin Ramli & Ors (supra), even though the “Penilaian Ganti Rugi Defendan”, IDD20 had been marked as ID and given that the maker of the document had not been called as a witness, the document would fall within the category of records or transactions that were consistent and had been issued as part of the Defendant’s regular business operations and in fulfillment of professional duties. The preparation of the document had been carried out by the Defendant’s professional team in the ordinary course of the Defendant’s business, aimed at assessing its losses. Consequently, it was well-founded to consider the document as admissible evidence.

The learned counsel for the Plaintiff argued that the Defendant’s counterclaim was unfounded and lacked sufficient supporting evidence. This assertion was predicated on the Defendant’s failure to provide essential witnesses to strengthen their counterclaim and the absence of pertinent documents before this Court that could have satisfied the Defendant’s burden of substantiating their counterclaim.

Firstly, I found that no evidence was presented to suggest that the burning of the Steam Turbine Generator was a result of any actions or omissions on the part of the Plaintiff. The investigation conducted by Helmtech did not conclusively attribute the fault to any actions or omission by the Plaintiff. Additionally, the Plaintiff did not provide any form of warranty to the Defendant for the service of the Steam Turbine Generator. Therefore, I find no basis for the Defendant’s alleged losses stated in its counterclaim against the Plaintiff.

Secondly, I find that the Defendant had failed to substantiate its counterclaim.

It is undisputed that the document presented as evidence for the Defendant’s damages claim in its counterclaim remained as ID until the conclusion of the trial. In fact, apart from D9a and D9b, which constitute the Helmtech report, all other documents introduced by the Defendant continued to be marked as ID due to failure to provide the original copies and summon the maker as witness for verification. Nonetheless, the Defendant argued that the Court should invoke its powers under section 73A of the Evidence Act 1960 to admit the ID documents as valid evidence.

Learned counsel for the Plaintiff objected to the admissibility of those ID documents in the absence of the originals being produced and in the absence of the maker being called as a witness. In support of his argument, the learned counsel referred to the Court of Appeal case of Damansara Realty (Pahang) Sdn. Bhd. V Om Cahaya Mineral Asia Bhd. [2021] 5 MLJ 1. The Court of Appeal stated as follows: [162] On this score, there is no dispute that the documents that were relied upon were Part C documents. They remained in that category right until the end of trial and until the decision on damages was delivered. [163] The plaintiff had the burden of admitting those documents as exhibits by laying the factual foundation and by invoking the Court's discretion under s. 32 of the Evidence Act 1950 or s.73A of the Evidence Act 1950 as the case may be. No doubt, this would have been a laborious and tedious task. But there is no easy alternative. [164] It appears that the plaintiff merely relied on Part C documents to prove its claim for wasted expenditure, which was an erroneous strategy. The burden on the part of a party who relies on Part C documents was lucidly explained by Wong Kian Kheong JC (as he then was) in KTL Sdn Bhd v Leong Oow Lai [2014] 1 MLJU 1405; [2014] 1 LNS 427; [2014] AMEJ 1458 (HC) where he said relevantly:-

If a document is classified as a Part C Document, the party adducing that document bears the evidential burden to satisfy the court on a balance of probabilities the following two conditions of admissibility of that document (two conditions of admissibility) :

in accordance with the rule against documentary hear say, the maker of the Part C Document has to be called as a witness - the Federal Court's judgment in Capital Insurance Bhd v Cheong Heng Loong Goldsmiths (KL) Sdn Bhd [2005] 4 CLJ 1, at 20, 21-25 and 28. If the maker of a Part C Document cannot be called as a witness, the party adducing that document has to satisfy the court regarding the application of any one of the exceptions to the hear say rule such as ss. 32(1)(a) to (h) [s. 32(i) and U) EA only apply to criminal proceedings according to s. 32(2) EA], 33 to 37, 73A(1), (2) and/or 90A(1) EA [s. 90C EA provides that s. 90A EA shall prevail over, among others, any other provision of EA relating to the proof of evidence]; AND

‘primary evidence’ of the Part C Document as understood in s. 62 EA must be adduced in court as required by s. 64 EA-the Supreme Court's decision in KPM Khidmat Sdn Bhd v Tey Kim Suie [1994] 2 MLJ 627; [1994] 3 CLJ 1, at 631. It is to be noted that Explanation 3 of s. 62 EA provides that a document produced by a computer (in compliance with s. 90A EA) is primary evidence. If ‘primary evidence’ of a Part C Document is not available, s. 64 EA provides that ‘secondary evidence’ [within the meaning of s. 63(a) to (e) EA] of the Part C Document can only be admitted as evidence if there is proof of the application of any one of the paragraphs in s. 65(1)(a) to (g) EA.

The two conditions of admissibility need not be fulfilled in respect of Part A Documents and Part B Documents.

As the two conditions of admissibility apply to a

In view of O 34 r 2(2)(d), (e) and (i) RC, cases decided on agreed bundle of documents before the advent of RC such as the Supreme Court case of Jaafar Shaari & Anor v Tan Lip Eng & Anor [1997] 4 CLJ 509; [1997] 4 AMR 3744 and the High Court's judgment in Mohd Nazari bin Ab Majit v Tan Keo Hock & Anor [1999] 1 CLJ 601; [1998] 4 AMR 3936, in my respectful opinion, should be read with caution. [165] Clearly, the issue of classification of documents (Part C documents) could and should have been sorted out at the case management stage, if not before the liability stage, then at least before the assessment of damages stage. At any rate, what is clear is that the plaintiff relied on Part C documents at the assessment of damages and these were not proven as per the Evidence Act 1950 and admitted as exhibits. [166] As regards the Judge's reliance upon disputed documents, we think that it is appropriate to mention that in UEM Group Bhd. (previously known as United Engineers (M) Bhd.) v Genisys Integrated Engineers Pte Ltd & Anor [2018] supp MLJ 363; [2010] 9 CLJ 785; [2010] 2 MLRA 668 FC (at paras 32-36) the Federal Court reversed the findings of the Court of Appeal which had relied upon ‘disputed’ documents to make the impugned findings of fact. [167] In the result, we are impelled to the view that there was no evidence to support the claim for damages under the heading of ‘wasted expenditure’ (prayer 35 (2) of the SOC).” [emphasis added]

It is a well-established rule of evidence that when documentary evidence is tendered, primary evidence of the said document must be adduced except in the cases under section 65 of the Evidence Act 1950.

The Court of Appeal in Sampo Materials (M) Sdn. Bhd. v. Tenaga Nasional Bhd. [2015] 9 CLJ 902 (Sampo Materials) explained the principle of the admissibility of documents. The Court of Appeal stated: “[53] It is settled law that the mere fact that a document is marked as an exhibit as P6 and P4 were in this case, did not render both documents admissible until the content is properly proven. This fundamental rule of evidence was comprehensively set out by Raus Sharif FCJ in UEM Group Bhd v. Genisys Integrated Engineers Pte Ltd & Anor (supra). [36] It is fundamental that it is the requirement of the best evidence rule that the maker of a document must be called to prove it. (Allied Bank (Malaysia) Bhd v. Yau Fiok Hua [1998] 2 CLJ 33). Further s. 73A of the Evidence Act states that in civil proceedings, the maker must be called as a witness in order to render it admissible in evidence. (Ooi Yoke In (f) & Anor v. Public Finance Berhad [1993] 2 CLJ 464). And a document cannot be admitted into evidence and marked as such until properly proven (Chong Khee Sang v. Phang Ah Chee [1983] 1 LNS 57). In the instant case, it is clear that both the subcontract and the fax were not properly proven and should have been disregarded. Thus, the Court of Appeal, by relying on those documents in reversing the findings of facts of the trial judge was clearly in error on evidential issues [54] In his judgment, Raus Sharif FCJ cited with approval the case of Chong Khee Sang v. Pang Ah Chee [1983] 1 LNS 57; [1984] 1 MLJ 377 where Shankar J (as he then was) ruled, inter alia, that:

a document does not become admissible in evidence merely because it has been handed to the adjudicating officer and marked as an exhibit; and

a document cannot be admitted into evidence and marked as such until it has been properly proved. [55] In respect of P4 which contained the calculations upon which the alleged outstanding sum was arrived at, the figures upon which SP3 based his calculation were prepared by one Puan Sarojini. (see the evidence of SP3 in cross-examination (supra)). [56] Puan Sarojini who had retired by the time the trial took place, was never called to give evidence. The figures supplied by Puan Sarojini were allegedly the amount of units consumed by the defendant in one month. [57] SP3 could not explain how the figures were arrived at and what formula was used as a basis for the calculation of the figures. This can be seen when SP3 was challenged as to the accuracy of the figures during cross-examination: … [58] As for P4, SP1 had confirmed in her evidence that she was not the maker of the document. SP1 testified that P4 was drawn up to show the consumption of electricity by the defendant before and after the meter was repaired. In Q&A 26 of her witness statement, SP1 explained the significance of P4 in the following terms: … [59] SP1 had also stated in cross-examination that P4 was the basis upon which the notice of demand were sent to the defendant on 9 January 2003 and on 4 February 2003. [60] It can be seen from the above that the plaintiff’s claim was hinged primarily on both these documents P4 and P6. [61] As testified by SP1 and SP3, it was from these documents that the outstanding sum of RM340.002.72 was arrived at. [62] However, the maker of P4 and Puan Sarojini who prepared the figures in P6 were not called. [63] In our view the failure of the plaintiff to call the makers of these documents rendered them inadmissible as they had not fulfilled the best evidence rule required under s. 73A of the Evidence Act 1950. (see UEM Group Bhd v. Genisys Integrated Engineers Pte Ltd & Anor (supra). The fact that they were marked as exhibits would not make them admissible until their content had been properly proved. (as per Shankar J in Chong Khee Seng (supra)). [64] The plaintiff in this regard failed to adduce any evidence to show that the maker of P6 and Puan Sarojini were dead, unfit by reason of their bodily or mental condition, were overseas or that all efforts to find them have been made without success in order to absolve them from the strict requirements of s. 73A of the Evidence Act 1950. [65] The plaintiff had contended that it was not necessary for the maker to be called. According to learned counsel for the plaintiff, the computation and calculation of the amount outstanding was based on a machine graph ie, P6. Therefore, the evidence of SP1, SP2 and SP3 in reading the calculation on the graph was sufficient to negate any adverse inference that may be invoked against the plaintiff for not calling the maker in contrast to the defendant who had chosen not to adduce any evidence to dispute the said outstanding sum. [66] We were unable to agree with learned counsel’s proposition for the reasons stated above. In this regard we refer to the case of KPM Khidmat Sdn Bhd v. Tey Kim Suie [1994] 3 CLJ 1; [1994] 2 MLJ 627 at p. 633 where Mohamed Dzaiddin SCJ (as he then was) set out the legal position on this issue in clear and lucid terms. … [67] We reproduce below in extenso the judgment of His Lordship on this issue: We agree with counsel’s submission that the learned judicial commissioner was wrong in law in relying on the summary of accounts (at pp 117-121 of the appeal record) prepared by Ah Lian, who was not called as a witness nor made available to the defendant. Moreover, the record book of the respondent, which was the source document upon which the summary of accounts was prepared, was never produced. It is a well-established rule of evidence that when documentary evidence is tendered, primary evidence of the said document must be adduced except in the cases under s 65 of the Evidence Act 1950. According to Sarkar on Evidence (14th Ed, 1993) at p 961, when a given matter has been expressed in writing, the primary evidence of it is the writing itself and subject to the provision of s 65, the writing, unless admitted by the other side, must be produced if it is desired to prove the matter expressed in it. On the question of a balance sheet, the Indian Supreme Court, in Petlad Turkey Red Dye Works Ltd v. Dyes & Chemical Workers' Union, Petlad & Anor, has held that a balance sheet does not by itself prove the facts stated therein. It has to be proved like any other fact by affidavit or otherwise. Das Gupta J, delivering the judgment of the court, stated (at p 909): All that the balance sheet, as submitted, shows is that certain statements were made. The mere fact that the statements were made can never be taken as proving that the statements were correct. That is a distinction which the courts of law have always been careful to make. Thus, if a person is to prove that he was ill on a particular date, the mere filing of a certificate of a medical man that he was ill on that date is not accepted as evidence to show that he was ill. The correctness of the statement made in the certificate has to be proved by an affidavit or oral testimony in court by the doctor concerned or by some other evidence. There is no reason why an exception should be made in the case of balance sheets prepared by companies for themselves. It has to be borne in mind that in many cases the directors of the companies may feel inclined to make incorrect statements in these balance sheets for ulterior purposes. While that is no reason to suspect every statement made in these balance sheets, the position is clear that we cannot presume the statements made therein to be always correct. The burden is on the party who asserts a statement to be correct to prove the same by relevant and acceptable evidence. Likewise, in the instant case, the summary of accounts does not prove the facts and particulars stated therein. The mere fact that the summary of the particulars were made could never be taken as proving that the contents were correct. It has to be proved by calling the maker to explain the facts and the basis of the calculation of the amount claimed. Moreover, the record book upon which the maker based her summary must be in evidence. In this case, where the summary was based on the record kept by the respondent, such record must be produced except if it can be shown that the original record is lost or has been destroyed. The burden of proving that the record book is lost or destroyed lies on the party who is seeking to adduce secondary evidence of the contents of the record book. (See s 104 illustration (b) of the Evidence Act 1950). Here, the evidence of the respondent on the matter is as follows (at p 56 of the appeal record): (emphasis added) [68] Thus similarly in the present case, the calculations contained in the debit note, P4 in particular does not prove the facts and particulars contained therein. As observed by the Supreme Court, the mere fact that the calculations were made could never be taken as proving that the contents were correct. It has to be proved by calling the maker, in this case Puan Sarojini who prepared the figures upon which SP3 relied on to extrapolate the amount due to the plaintiff, to explain the figures and the basis of the calculation…. [69] In the premises P6 and P4 were therefore clearly inadmissible and SP1 and SP3’s evidence merely hearsay as the veracity of these documents which SP1 and SP3 were seeking to establish could not be ascertained without the makers being cross-examined. (see Subramaniam v. PP (supra))” [emphasis added]

The preceding judgment emphasised the importance of adhering to the best evidence rule, as required under section 73A of the Evidence Act 1950, for ensuring the admissibility of documents. This rule dictates that the original document must be produced, accompanied by the testimony of its maker. Any failure to call upon the maker of the document must be explained. While a document may have been marked as an exhibit (P), it still needs to be proven in order for it to be admitted as evidence.

In the present case, the document in dispute remained IDD20. The document at IDD20 being the calculation for the losses incurred was prepared by the legal and accounts team of the Defendant. The Defendant’s counterclaim was hinged primarily on IDD20. Therefore, the calculation of the losses contained in IDD20 must be proven by calling the maker of the document. As observed by the Supreme Court, in KPM Khidmat Sdn Bhd v. Tey Kim Suie, as referred to by the Court of Appeal in Sampo Materials, the mere fact that the calculations were made could never be taken as proving that the contents were correct. It has to be proved by calling the maker, in this case, the officers from the legal and accounts team who had prepared this calculation, upon which DW1 and DW3 relied to estimate the losses incurred due to the alleged failure of the Plaintiff, to explain the figures and the basis of the said calculation in IDD20.

Section 73A of the Evidence Act 1950 reads as follows: “73A Admissibility of documentary evidence in civil cases, etc

Notwithstanding anything contained in this Chapter, in any civil proceedings where direct oral evidence of a fact would be admissible, any statement made by a person in a document and tending to establish that fact shall, on production of the original document, be admissible as evidence of that fact if the following conditions are satisfied:

if the maker of the statement either—

had personal knowledge of the matters dealt with by the statement; or

(ii) where the document in question is or forms part of a record purporting to be a continuous record, made the statement (so far as the matters dealt with thereby are not within his personal knowledge) in the performance of a duty to record information supplied to him by a person who had, or might reasonably be supposed to have had, personal knowledge of those matters; and

if the maker of the statement is called as a witness in the proceedings: Provided that the condition that the maker of the statement shall be called as a witness need not be satisfied if he is dead, or unfit by reason of his bodily or mental condition to attend as a witness, or if he is beyond the seas and it is not reasonably practicable to secure his attendance, or if all reasonable efforts to find him have been made without success.”

Pursuant to section 73A, the proviso provides the condition in which the calling of the maker of the document can be dispensed with.

However, in this case, the Defendant made no attempt to address the admissibility of these documents during the trial. Further, there was also no attempt by the Defendant to elucidate the reasons behind their inability to present the original document and summon the maker for those documents that were marked as ID, as witnesses.

IDD20, which succinctly summarises the Defendant’s counterclaim, represented the Part C documents, which were not certified copies. The Defendant failed to offer any explanation or lead any evidence regarding why the makers of these documents could not be called and the original copies could not be introduced as evidence in Court. DW1 conceded to lacking knowledge about the IDD20, he admitted having seen the document for the first time during his court testimony. DW1 also informed the Court that IDD20 had been formulated by the legal and accounts team, incorporating information on losses supplied by the Mill. Notably, DW1 acknowledged his non-involvement in the document's preparation.

DW3 too admitted he did not prepare IDD20, notwithstanding that the events transpired while he was still employed at the Mill. He affirmed that the figures and particulars had been compiled by the legal and accounts team at the headquarters, and he had already left the Defendant by that time. Evidently, it is discernible that the Defendant had not fulfilled the requirements set forth in the proviso of section 73A(1) of the Evidence Act 1950.

Hence, it is my considered view that the failure of the Defendant to call the makers of the document in IDD20 and other ID documents tendered by the Defendant, rendered them inadmissible as the Defendant had not fulfilled the best evidence rule required under section 73A(1) of the Evidence Act 1950.

Since sections 73A(1) and (2) were distinct (see: Arab-Malaysian Merchant Bank Bhd v. Chong On Foh Medical Hall & Liquor Dealers [1997] 4 MLJ 532), the Court had also examined the admissibility of IDD20 under section 73A(2) considering its provision that empowers the judge to use discretion and waive the necessity to call forth the maker of the document, if satisfied that undue delay or expense would otherwise be caused. Section 73A(2) reads as follows: “(2) In any civil proceedings, the court may at any stage of the proceedings, if having regard to all the circumstances of the case it is satisfied that undue delay or expense would otherwise be caused, order that such a statement as is mentioned in sub-s (1) shall be admissible as evidence or may, without any such order having been made, admit such a statement in evidence—

notwithstanding that the maker of the statement is available but is not called as a witness; and

notwithstanding that the original document is not produced, if, in lieu thereof, there is produced a copy of the original document or of the material part thereof certified to be a true copy in such manner as may be specified in the order or as the court may approve, as the case may be.”

Nonetheless, before the discretion could be invoked under section 73A(2), the Court is required “to have regard to all the circumstances of the case”. Subsequently, only when the Court is satisfied that undue delay or expense would otherwise be caused, will the Court exercise the discretion to admit the document.

In order for the Court to duly consider all the circumstances of the case, it is imperative that there exists sufficient evidence before the Court for its deliberation. In the absence of such evidence, the Court would be constrained in its ability to exercise the said discretion.

The exercise of discretion under section 73A(2) of the Evidence Act 1950 is best illustrated in Sin-Kung Logistics (KL) Sdn. Bhd. v Projek Lebuhraya Usahasama Berhad [2020] 3 MLJ 800, where the document in question was admitted under section 73A(2) because there was sufficient evidence before the Court as explained by the Court of Appeal as follows: “The said section 73A(2) clearly gave the Court the power to admit the Forms documentary evidence without calling their makers “… if having regard to all the circumstances of the case it is satisfied that undue delay or expense would otherwise be caused …”. We can see and appreciate where the learned High Court Judge was coming from for it was not just a question of a few witnesses going to be called to tender the Forms but hundreds of them and to give evidence on a very mundane issue of whether the tolls had been paid and if we may add, which was for a paltry sum. Admittedly, the amount stated in one PV form represented a fraction of the debt claimed by the plaintiff, nonetheless the calling of hundreds of these witnesses would definitely caused undue delay to the completion of the trial…. [emphasis added]

A further illustration can be gleaned from Devlin J in Bowskill v Dawson & Anor [1953] 3 W.L.R 969 : “The condition which is required to be satisfied before a copy can be produced is that the court should, having regard to all the circumstances of the case, be satisfied that undue delay or expense would otherwise be caused. It is not, therefore, a provision designed as a substitute for the common law rule as to secondary evidence of lost documents It is not therefore a proviso which is designed to be some substitution for the common law rule as to secondary evidence of lost documents; it requires the court to be satisfied that undue delay or expense would otherwise be caused, and therefore implicitly requires that the original document should be in existence, and the only question that arises is whether it will not cause an unnecessary delay or expense to have it produced. That is borne out by what follows in the rest of the section. It is something certified to be a true copy. It looks as if the statute had in mind the very common arrangement that where there are original documents which are kept in somebody's custody, such as a bank or a public authority, and it is inconvenient to have them brought to court, a certified copy is accepted instead.” [emphasis added]

Likewise, the need in our jurisdiction to provide a certified true copy is set out in section 73A(2)(b) of the Evidence Act 1950 if the original is not produced.

The same was also decided in the case of Tan Ah Tong v Parveen Kaur [2011] 5 MLJ 428, that held, “[22] The defendant admitted in his evidence that he had misplaced (thus cannot be traced) the original copies of all the documents IDD41, IDD42 and IDD43. The defendant has not adduced any evidence to show that all the three documents were true copies of the originals. The learned High Court judge was correct in law when he held that those uncertified copies of the three documents do not qualify as certified true copies within the meaning of s 73A(2)(b) of the Evidence Act 1950 and therefore not admissible in evidence. Therefore the defendant's defence on this issue cannot stand.” [emphasis added]

Hence, as gleaned from the aforementioned precedents, it is evident that in order to invoke section 73A(2), the Defendant must adduce evidence for this Court’s consideration. It requires the court to be satisfied that undue delay or expense would otherwise be caused by calling the maker of the document and for the original document to be produced. However, in this case, the Defendant failed to provide any evidence demonstrating that calling the maker of the documents or producing the original document would lead to undue delay or expense.

It is evident that IDD20 constituted the essence of the Defendant’s counterclaim. Given the necessity to verify the accuracy of the claim, it was crucial for the Defendant to adequately establish and prove the content of the document, as decided in Sampo Materials. Since the ID documents and especially IDD20 remained disputed throughout and remained as ID documents until the conclusion of proceedings, and owing to a lack of proof, this Court found that those documents are inadmissible (see: Damansara Realty (Pahang) Sdn. Bhd. V Om Cahaya Mineral Asia Bhd. (supra)).

I have also considered the decisions in the case of Kubota Agricultural Machineary Sdn. Bhd. v Sharizan Sdn. Berhad & Anor [2001] MLJU 71 and Bank of Tokyo-Mitsubishi (Malaysia) Berhad v Sim Lim Holdings Berhad & Ors [2001] MLJU 125 which had dealt with the admission of ID documents. I find the factual circumstances that were considered in those cases were different from the case before this Court, hence I find section 73A(2) of the Evidence Act 1950 was not applicable in the present case.

In Kubota Agricultural Machineary Sdn. Bhd. v Sharizan Sdn. Berhad & Anor (supra) Ramli Ali J (as his Lordship was then), stated as follows: “In our present case, the Court is of the opinion that to sub-s. (2) of section 73A applies i.e. where the maker of the statement or document may be available but his attendance to testify in Court cannot be procured without an amount of delay and expenses. It must be noted that this action was filed on 19.4.1985. It was postponed numerous times for various reasons. This case had been pending in Court for 16 years. All the makers of the documents, particularly Mr. C.M. Chong who was the General Manager of the Plaintiff company in 1984 had left the company and cannot be traced. The Plaintiff was not able to trace him because there was no present address and no contact numbers. To call the maker of the statements would mean further postpontment for this action. It would be very unfair to the Plaintiff. So, it is only proper and appropriate for the Court to invoke section 73A(2) of the Evidence Act 1950 in this action. … …The Court is given wide discretionary powers to admit the evidence under the provisions of Sections 73A(2); 73A(5); 73A(6) as well as section 32 (1)(b) and (j) of the Evidence Act 1950. To hold otherwise would be against the commercial realities. Commercial activities would be adversely affected. In estimating the weight to be attached to those statements, the Court had considered all the circumstances from which any inference can reasonably be drawn as to the accuracy or otherwise of the statement, and in particular, to the question whether or not the statement was made contemporaneously with the occurance or existance of the facts stated and to the question whether or not the maker of the statement had any incentive to conceal or misrepresent facts. This is provided under section 73A(6) of the Evidence Act 1950. In this case, the Court is satisfied that all those documents were made contemporaneously with occurance or existance of the facts stated. Also, there's nothing to indicate that the maker of those documents had any incentive to conceal or misrepresent facts.” [emphasis added]

Firstly, it is imperative to acknowledge that in Kubota, the court was presented with evidence indicating that the maker of the document had left the company and cannot be traced, and the Plaintiff could not trace the said witness due to no current address or contact information. The court was of the view that calling the maker as a witness would have caused further postponement of the action, which would be unfair to the Plaintiff. Therefore, the court found it was fit and proper for the court to invoke section 73A(2) of the Evidence Act 1950.

Secondly, in estimating the weight to be attached to those statements in the ID document, the court was furnished with pertinent evidence enabling the Court to consider and draw any inference as to the accuracy or otherwise of the statements as provided under section 73A(6) of the Evidence Act 1950. Further, it enabled the court to deliberate upon whether these statements were contemporaneous with the occurrence or existence of the facts stated and to question whether or not the maker of the statement had any incentive to conceal or misrepresent facts.

In the case before this Court, as I have mentioned earlier, the Defendant had not provided any explanation as to why the maker of IDD20 cannot be obtained. There was no evidence indicating the availability of the maker of the statement or document. Moreover, even if the maker was available, there was no evidence that their attendance to testify in Court could not be procured without incurring delays and expenses.

Further, the document in IDD20 was prepared only after DW3 has left the company. Considering that IDD20 constituted the calculation of the Defendant’s alleged losses, no evidence was presented before this Court that would enable the Court to estimate the weight to be attached to those statements in the IDD20 to draw inferences about the accuracy of the statement or whether the statement was made contemporaneously with the occurrence of the stated facts, and whether the maker of the statement had any incentive to conceal or misrepresent facts.

Hence, in the absence of such evidence, I find this Court was unable to invoke section 73A(2) to admit IDD20.

Whereas, in the case of Bank of Tokyo-Mitsubishi (Malaysia) Berhad v Sim Lim Holdings Berhad & Ors (supra) Ramli Ali J (as his Lordship was then), stated as follows: “The counsel for the 2nd and 3rd Defendants contended that the second and third Notice of Demands (ID17 - ID19 and ID21 - ID23) were only marked as 'ID' and the maker of the documents were not called to give evidence. He argued that as such the notices are"hearsay" and inadmissible. The effect of the Defendant's submission is that the solicitor who drafted the notices of demand on behalf of the Plaintiff must be called to give evidence and to tender the said notice before they can be accepted as evidence. On the same token, the postman who delivered the notices and later accepted the signed copy of the relevant AR Cards must also be called to testify in Court and to produce each and every one of the relevant AR Cards and Certificate of Posting (ID18- ID20 and ID22 - ID24). I just cannot imagine if this things really happened. Solicitor or lawyer who, in his professional capacity has been issuing notice of demand almost everyday has to came to court to testify and produce the said notices of demand as exhibit. Postman, whose ordinary duty is to deliver letters, would also be lining up in the court's witness room waiting to be called to give evidence and to produce all the AR Cards which they had been handling. To my mind, what the Defendants wished to achieve through their submission is totally not practical. Undue delay and expense would be caused. The notices of demand are issued by solicitors or lawyers on behalf of their clients in their ordinary course of business. The AR Cards and certificates of posting are issued by postman in their ordinary course of business. To call them to testify in court may cause undue delay or expense which under the circumstances appears to be unreasonable. As such, by virtue of section 32 (1)(b) of the Evidence Act 1950, the statements contained in those documents are relevant facts. … Therefore, by virtue of the above provisions of law, I am satisfied that the said notices of demand (ID17 - ID19) and ID21 - ID23); the AR Cards (ID18 - ID20) and Certificates of Posting (ID22 - ID24) are admissible as evidence. All these documents are part of a transaction or records which are consistent, and were issued in the course of business and discharge of professional duty. The court can see the genuinity of these documents without the makers being called.” [emphasis added]

It should be noted that the ID documents accepted and admitted by the court in the Bank of Tokyo-Mitsubishi were notices of demand and the AR card issued by the solicitors and the postman, respectively, in the ordinary course of their business. In our case, the document marked as IDD20 was prepared to calculate the alleged losses incurred by the Defendant. Guided by the principles of admission of documents as stipulated in Sompo Materials, it was crucial for the Defendant to call the maker to clarify the figures and details presented in IDD20. The testimonies of DW1 and DW3 were merely hearsay, as the accuracy of IDD20 could not be confirmed without subjecting the makers to cross-examination by the Plaintiff. Furthermore, it's noteworthy that IDD20 was not a certified copy.

It is trite that the Defendant has to prove the damages alleged in IDD20. In this case, the Defendant did not present any supporting documents to validate the details and figures enumerated in IDD20. The accuracy of the claimed figures remains unverifiable, given that DW1 and DW3 were not involved in the preparation of those documents. In the case of Lee Sau Kong v Leow Cheng Chiang [1961] 1 MLJ 17, Thompson CJ, stated: “With regard to the claim for damages I would preface what I have to say by quoting the following passage from the judgment of Lord Goddard in the case of Bonham-Carter v Hyde Park Hotel Ltd (1948) 64 TLR 177 178: — "Plaintiffs must understand that if they bring actions for damages it is for them to prove their damage; it is not enough to write down the particulars, and, so to speak, throw them at the head of the Court, saying: 'This is what I have lost; I ask you to give me these damages.' They have to prove it."” [emphasis added]

Thus, for the reasons I have stated above, I find the Defendant had failed to prove its counterclaim on a balance of probabilities.

Having considered the evidence adduced before this Court in its totality, I am satisfied that the Plaintiff has proved its claim on a balance of probabilities and was therefore entitled to judgment as prayed for in the statement of claim. I find the Defendant has failed to prove its counterclaim on the balance of probabilities.

For the foregoing reasons, I, therefore, ordered that the Plaintiff’s claim as per the prayers in paragraph 11, except for prayer (f), of the Statement of Claim be allowed. The Defendant’s counterclaim be dismissed. The Defendant is to pay costs of RM50,000.00 to the Plaintiff. Dated: 22nd August 2023 -sgd-JAMHIRAH ALI JUDICIAL COMMISSIONER High Court of Malaya at Shah Alam (NCVC 1) To the parties’ solicitors: For the Plaintiff : Edward Andrew Saw Keat Leong & Megan Choo Wen Shin (Messrs. Josephine, L K Chow & Co.) For the Defendants : Colin Victor George & Christine Jee Panji Papanji (Messrs. Colin Victor & Co.)