Fgv Prodata Systems Sendirian Berhad v Nec Corporation of Malaysia Sendirian Berhad (WA-22NCC-139-03/2023)

High Court of Malaysia22 Aug 2025

The written judgment as the court issued it, with the coram, case number, and source links. Every paragraph has its own anchor.

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4300037239/2300020035 dated 6.4.2021 explicitly states “REQUEST BY: Shamsul Fadhli 31171576 - HUALANG RENEWABLE ENERGY SDN BHD.” This Purchase Order, issued by the Plaintiff itself, unequivocally identifies Hualang as the requesting party for the Hardware. The delivery location specified in this same Purchase Order was “MAJU INTAN BIOMASS POWER PLANT, 36000 PERAK”, indicating that whilst the delivery address was the plant location, the contracting party requesting the goods was Hualang. S/N 02hWGNrqt0aco8Lbp3PFqQ [73] The Letter of Award dated 22.3.2021 issued by Hualang to the Plaintiff and signed by Dato' Setia Dr. JP Tan as Group President of Hualang further confirms Hualang's status as the Plaintiff's customer. This Letter of Award constituted the foundational document establishing the contractual relationship between Hualang and the Plaintiff for the entire Project. PW3, Shamsul Fadhli bin Anuari, confirmed under cross-examination that Dato' JP Tan was the main person authorised to give instructions as the Plaintiff's customer. The evidence establishes that from the outset of the Project, Hualang was the customer who commissioned the work from the Plaintiff. [74] The contractual chain consistently identifies Hualang as the customer and intended recipient. Beyond the Purchase Order and Letter of Award, the following documents all reference Hualang as the contracting party: a) the Plaintiff's Packing List dated 5.7.2021, which was signed off by Hualang with Dato' JP Tan's signature and Hualang's company stamp; b) the Plaintiff's Checklist for Hardware and Software Implementation dated 5.7.2021, similarly signed by Dato' JP Tan on behalf of Hualang; and c) the Plaintiff's Certificate of Completion dated 6.7.2021, which was endorsed by Hualang on 7.7.2021. S/N 02hWGNrqt0aco8Lbp3PFqQ [75] Each of these documents, prepared and issued by the Plaintiff itself, treated Hualang as the party to whom delivery was made and from whom acceptance was obtained. [76] The evidence establishes that MIBE had no contractual involvement whatsoever in the Project. PW1 (Justin Ang Kheng Aun) and PW2 (Harisal bin Talib), both witnesses from MIBE, confirmed under cross-examination that MIBE had never issued any purchase order for the Hardware. PW2 confirmed in cross-examination that MIBE did not purchase any equipment from the 1st Defendant or Shinryu, and therefore was not entitled to give any acknowledgement for equipment delivered by those companies. At no time did the Plaintiff inform the 1st Defendant that MIBE was a company participating in the Project or that MIBE was supposed to be the recipient of the Hardware. The Plaintiff never instructed that delivery should be acknowledged by MIBE. [77] Significantly, even in the Plaintiff's own letter dated 20.12.2022 which first raised the allegation of non-delivery, the Plaintiff acknowledged that “the delivery of the equipment was undertaken by NEC Corporation Sdn Bhd to Hualang Renewable Energy Sdn Bhd ('HRE') at a Biomass plant operated by Maju Intan Biomass Energy Sdn Bhd ('MIBE')”. This contemporaneous acknowledgement by the Plaintiff itself demonstrates that the delivery was intended to be made to and received by Hualang at the location of the Maju Intan S/N 02hWGNrqt0aco8Lbp3PFqQ Plant, and not by whichever company was operating the Maju Intan Plant at that time. The Plaintiff's subsequent attempt to recharacterise the contractual obligation as requiring delivery to MIBE contradicts its own prior understanding and documentation. [78] The Plaintiff's case represents a fundamental misunderstanding of the contractual arrangements. There is a critical distinction between the delivery location (the physical address where goods are to be delivered) and the contractual recipient (the party entitled to take delivery and acknowledge receipt). The contract required delivery to the Maju Intan Plant location, but to be received by Hualang as the Plaintiff's customer and end-user. This arrangement is entirely consistent with commercial reality: Hualang, as the customer who commissioned the Project and would operate the SIAT System at the plant location, was the proper party to receive the Hardware at that location. [79] For the reasons set out above, I find that the contractual obligation was to deliver the Hardware to Hualang at the address of the Maju Intan Plant. The delivery was not required to be made to or acknowledged by MIBE, which had no contractual relationship with any party to the transaction. The Plaintiff's attempt to impose MIBE as the necessary recipient finds no support in the contractual documentation and is contradicted by the Plaintiff's own contemporaneous conduct and acknowledgements. The Defendants correctly S/N 02hWGNrqt0aco8Lbp3PFqQ understood and fulfilled their obligation by delivering the Hardware to Hualang's authorised representative at the specified location. Issue 5: Authority of Dato' JP Tan [80] The Plaintiff submitted that Dato’ JP Tan lacked authority to receive the Hardware on behalf of Maju Intan. In its Amended Statement of Claim, the Plaintiff pleaded that “Joshua Peter Tan Pin Pin … bukan seorang yang mempunyai kuasa untuk menerima Perkakasan tersebut bagi pihak Maju Intan.” The Plaintiff’s position was that although Dato’ JP Tan signed various delivery documents, including the Shinryu DO, he did not possess the requisite authority to acknowledge receipt of the Hardware for Maju Intan. [81] In support, the Plaintiff relied on a letter from Messrs Zaid Ibrahim & Co dated 25.8.2022, stating that they acted for MIBE and confirming that this entity had no knowledge of the Hardware, that the Hardware had never been supplied, delivered or installed at Maju Intan, and that Dato’ JP Tan was not an authorised agent empowered to receive the Hardware on its behalf. The Plaintiff therefore submitted that the Defendants’ reliance on documents signed by Dato’ JP Tan was misplaced, as he lacked authority to bind Maju Intan or validly acknowledge delivery. S/N 02hWGNrqt0aco8Lbp3PFqQ [82] The 1st Defendant submitted that Dato’ JP Tan was duly authorised to receive the Hardware on behalf of Hualang, the Plaintiff’s customer and end user. It emphasised that Dato’ JP Tan was the Group President of Hualang, as evidenced by the Letter of Award dated 22.3.2021, which he signed in that capacity when awarding the Project to the Plaintiff. [83] The 1st Defendant further submitted that the Plaintiff’s own conduct throughout the Project consistently recognised Dato’ JP Tan’s authority. The Plaintiff relied on the Letter of Award signed by him, communicated with him throughout the Project without objection, and, most significantly, itself prepared the Packing List, Checklist and Certificate of Completion and expressly requested the 1st Defendant’s assistance to procure Dato’ JP Tan’s signature and endorsement on those documents in emails dated 5.7.2021 and 6.7.2021. [84] In addition, the 1st Defendant relied on the evidence of PW3, who acknowledged during cross-examination that Dato’ JP Tan was “the main person who is authorized to give you instruction” on behalf of Hualang. The 1st Defendant contended that the Plaintiff’s later denial of Dato’ JP Tan’s authority was inconsistent and opportunistic. [85] Finally, the 1st Defendant argued that the Plaintiff sought to conflate the physical delivery location (Maju Intan Plant) with a separate legal entity (MIBE) in order to manufacture doubt. The 1st Defendant characterised this as a red herring, S/N 02hWGNrqt0aco8Lbp3PFqQ maintaining that Hualang was the contractual recipient, that delivery was intended to Hualang at the plant location, and that Dato’ JP Tan had full authority to act on Hualang’s behalf in acknowledging delivery. [86] The evidence establishes that Dato' JP Tan held the position of Group President of Hualang and was properly authorised to receive the Hardware and sign off on its delivery on behalf of Hualang. His designation as “Group President” appeared on multiple contemporaneous documents, including most significantly the Letter of Award dated 22.3.2021 which was issued by Hualang to the Plaintiff awarding the Project. This Letter of Award bore Dato' JP Tan's signature in his capacity as Group President on behalf of Hualang. The Shinryu DO dated 15.4.2021 similarly bears his signature together with Hualang's official company stamp, with an express acknowledgement stating “Received the above in good condition”. Additionally, three critical documents prepared by the Plaintiff itself, namely the Packing List dated 5.7.2021, the Checklist for Hardware and Software Implementation dated 5.7.2021, and the Certificate of Completion dated 6.7.2021, all bore Dato' JP Tan's signature together with Hualang's company stamp. This consistent pattern of documentary evidence across multiple documents spanning several months demonstrates that Dato' JP Tan was recognised and treated as the authorised representative of Hualang throughout the Project. S/N 02hWGNrqt0aco8Lbp3PFqQ [87] The presence of Dato' JP Tan's signature together with the affixation of Hualang's company stamp on the delivery documentation entitles the 1st Defendant and Shinryu to rely upon the principle of indoor management, commonly known as the Turquand rule. This principle was established in the landmark case of Royal British Bank v Turquand [1843-60] All ER Rep 435 (Court of Exchequer Chamber), wherein it was held: “We may now take for granted that the dealings with these companies are not like dealings with other partnerships and that parties dealing with them are bound to read the statute and the deed of settlement. But they are not bound to do more. And the party here, on reading the deed of settlement, would find not a prohibition from borrowing, but a permission to do so on certain conditions. Finding that the authority might be made complete by a resolution, he would have a right to infer the fact of a resolution authorizing that which on the face of the document appeared to be legitimately done.” [88] The principle was reaffirmed by the High Court of Malaya in JKT Petroleum Sdn Bhd & Ors v T & O Resources Sdn Bhd [2016] 7 MLJ 52, which held: “...the plaintiff is entitled to the benefit of the Turquand rule. The evidence suggests that the plaintiff had acted in good faith and had no notice or no grounds to think that the said director was no longer a director and was acting without authority. The presence of the company seal and the signature of the other director with authority only lend credence to the assertion that the first defendant had all along intended to be bound by the said loan arrangement and it is only now when they are facing legal action that this assertion of invalidity is being raised”. S/N 02hWGNrqt0aco8Lbp3PFqQ [89] Simply put, the signature by Dato' JP Tan and the affixation of Hualang's company stamp on the delivery documents entitled the Defendants to assume that these documents were properly executed with due corporate authority. [90] Throughout the course of dealings, the Plaintiff itself had acted in a manner entirely consistent with treating Dato' JP Tan as having proper authority to represent Hualang. The Plaintiff produced and relied upon the Letter of Award received from Hualang and signed by Dato' JP Tan in his capacity as Group President. The Plaintiff's own internal emails, correspondence and documents consistently referred to and relied upon communications and confirmations from Dato' JP Tan without any suggestion that he lacked authority. Most tellingly, the Plaintiff prepared the Packing List, Checklist and Certificate of Completion and then specifically requested the 1st Defendant's assistance in obtaining Dato' JP Tan's signature and endorsement on these documents. This was evidenced by emails dated 5.7.2021 and 6.7.2021 from the Plaintiff's Encik Rizal bin Sa'ari to the 1st Defendant's Ms Nurul Huda Binti Abdul Rahman, explicitly requesting that these documents “needs a signature from the representative from Hualang or Maju Intan” and subsequently that the Certificate of Completion “needs Dato JP Tan's endorsement”. DW1 testified: “Yes they are FGV, the Rizal... because he is new, seeking our help to contact JP Tan to get the sign off.” The Plaintiff did not at any stage during the Project raise any concerns about Dato' JP Tan's S/N 02hWGNrqt0aco8Lbp3PFqQ representative capacity to acknowledge delivery or receive goods on behalf of Hualang. This conduct is wholly inconsistent with the Plaintiff's present contention that Dato' JP Tan lacked authority. [91] The Plaintiff's own witness, PW3 (Encik Shamsul Fadhli bin Anuari), expressly acknowledged Dato' JP Tan's authority during cross-examination. When referred to the Letter of Award signed by Dato' JP Tan as Group President on behalf of Hualang, the following exchange took place: “ECH: And this is signed by Dato' Setia Dr. JP Tan, Group President, on behalf of Hualang Renewable Energy Sdn Bhd, correct? PW3: Correct ECH: So the main person who is authorized to give you instruction, your customer, is Dato' Setia Dr. JP Tan, correct? PW3: Yeah. Correct.” [92] This testimony is particularly significant as it represents a clear acknowledgement by the Plaintiff's own employee that Dato' JP Tan was “the main person who is authorized to give you instruction” on behalf of Hualang. It is inconsistent for the Plaintiff to now challenge the authority of an individual whom its own witness acknowledged as the authorised representative of its customer. S/N 02hWGNrqt0aco8Lbp3PFqQ [93] The evidence demonstrates that there was no contemporaneous challenge to Dato' JP Tan's authority at any material time during or immediately following the alleged delivery. DW2 testified that she was in direct WhatsApp contact with Dato' JP Tan throughout the relevant period, and that he never once indicated that the Hardware had not been delivered or that he lacked authority to act on behalf of Hualang. The Plaintiff's correspondence over a period extending from July 2021 through to March 2022 consistently treated Dato' JP Tan as the authorised representative of Hualang, with emails referring to meetings with him and site visit arrangements requiring his approval. The challenge to his authority emerged only belatedly in the Plaintiff's Amended Statement of Claim, wherein it was pleaded that “Joshua Peter Tan Pin Pin yang telah mengakui terima pesanan penghantaran Shinryu Co Sendirian Berhad bukan seorang yang mempunyai kuasa untuk menerima Perkakasan tersebut bagi pihak Maju Intan.” Significantly, the Plaintiff's pleading implicitly conceded that Dato' JP Tan was indeed the person who signed the Shinryu DO, whilst attempting to dispute his authority to act. However, neither Dato' JP Tan nor any representative from Hualang was called as a witness to support this belated assertion. The total absence of any contemporaneous challenge to Dato' JP Tan's authority, combined with the Plaintiff's consistent treatment of him as authorised throughout the Project, leads inexorably to the conclusion that he possessed the requisite S/N 02hWGNrqt0aco8Lbp3PFqQ authority to receive the Hardware and execute the relevant documentation on behalf of Hualang. Issue 6: Whether Hardware was Delivered [94] The Plaintiff submitted that the Hardware was never delivered to the Maju Intan Plant. Its case relied primarily on the evidence of two witnesses from MIBE, namely PW1 (Justin Ang Kheng Aun, Operations Director) and PW2 (Harisal bin Talib, Operations Manager). Both witnesses testified that they had never seen the Hardware at the plant and had no knowledge of any delivery. [95] The Plaintiff contended that MIBE, as the operator of the Maju Intan Plant, was the proper recipient of the Hardware, and since MIBE never received it, no valid delivery could have occurred. It further argued that Dato’ JP Tan, who signed the Shinryu DO, lacked authority to receive the Hardware on behalf of MIBE or the Maju Intan Plant. [96] In addition, the Plaintiff challenged the photographs sent by the 1st Defendant, asserting that they did not depict the Maju Intan Plant. On this basis, the Plaintiff submitted that the 1st Defendant’s representations regarding delivery were false, and characterised its witnesses’ testimony as direct proof of non-delivery, while dismissing the Defendants’ documentary evidence. S/N 02hWGNrqt0aco8Lbp3PFqQ [97] The 1st Defendant submitted that the Hardware was duly delivered on 14.4.2021 by Shinryu to Hualang, the Plaintiff’s customer, at the Maju Intan Plant, and that this was supported by overwhelming contemporaneous documentary evidence. [98] The 1st Defendant emphasised that Hualang was the proper contractual recipient, having awarded the Project to the Plaintiff by way of the Letter of Award dated 22.3.2021. It relied on the Shinryu DO dated 15.4.2021, which was signed by Dato’ JP Tan as Group President of Hualang and stamped with Hualang’s official company stamp, bearing the endorsement “Received the above in good condition.” [99] Most significantly, the 1st Defendant relied on the email from the Plaintiff’s Chief Executive Officer, Encik Ali bin Mustafa, dated 30.6.2021, in which he expressly stated that he had personally verified the delivery with Hualang and confirmed that all documents were in order. The 1st Defendant submitted that this contemporaneous confirmation showed that the Plaintiff had independently verified delivery before accepting it. [100] The 1st Defendant further submitted that the subsequent signing of the delivery note on 30.6.2021, together with the Packing List, Checklist, and Certificate of Completion issued in July 2021, all bearing Hualang’s endorsement, constituted conclusive proof of delivery. It argued that the Plaintiff’s oral S/N 02hWGNrqt0aco8Lbp3PFqQ evidence could not displace this body of contemporaneous documentary evidence, and that the Plaintiff had failed to discharge its burden of proving non-delivery. [101] The fundamental issue is whether the Plaintiff has discharged its burden of proving that contractually compliant delivery was not made to the Maju Intan Plant. The burden of proof clearly rests with the Plaintiff as the party asserting non-delivery or improper delivery. The Plaintiff bears the onus of establishing on the balance of probabilities that the Hardware was not delivered to the proper recipient at the specified location, and that any representations made regarding delivery were false. [102] The Plaintiff relied primarily on oral testimony from witnesses who fundamentally lacked direct personal knowledge of the alleged delivery events. PW1 (Justin Ang Kheng Aun) testified that he only joined MIBE as Operations Director in April 2022, more than one year after the alleged delivery date of 14.4.2021. When cross-examined, PW1 confirmed: “You can confirm that you have no personal knowledge of the matters that happened in 2021?” to which he answered “Yes.” PW1 further admitted that he was only privy to documents in 2022, which was one year after the incident took place. Similarly, PW2 (Harisal bin Talib), the Operations Manager at MIBE, admitted that he was not present at the Maju Intan Plant on 14.4.2021. Most significantly, both PW1 and PW2 confirmed that MIBE had no contractual S/N 02hWGNrqt0aco8Lbp3PFqQ involvement in the Project and had never issued any purchase order for the Hardware. [103] The deficiency in the Plaintiff's evidence is compounded by the fact that PW1 and PW2 could provide no evidence regarding delivery to the contractually specified recipient, Hualang. PW1 confirmed that the Shinryu DO was executed by Hualang and stated that he did not know Dato' JP Tan. PW2 testified that he knew Hualang but did not know the Plaintiff or any of the parties to these proceedings, nor their relationship. These admissions demonstrate that the MIBE witnesses were not privy to the contractual arrangements and delivery instructions as between the Plaintiff, the Defendants, and Hualang. [104] As mandated by Section 60(1) of the Evidence Act 1950, oral evidence must in all cases be direct, meaning it must come from a witness who personally saw, heard, or otherwise perceived the fact in question. It reads: “(1) Oral evidence shall in all cases whatever be direct, that is to say—
if it refers to a fact which could be seen, it must be the evidence of a witness who says he saw it;
if it refers to a fact which could be heard, it must be the evidence of a witness who says he heard it;
if it refers to a fact which could be perceived by any other sense or in any other manner, it must be the evidence of a witness who says he perceived it by that sense or in that manner; S/N 02hWGNrqt0aco8Lbp3PFqQ
if it refers to an opinion or to the grounds on which that opinion is held, it must be the evidence of the person who holds that opinion on those grounds.” [105] The Plaintiff's witnesses could not provide direct evidence of non-delivery to the contractually specified recipient, Hualang. Their testimonies regarding events on 14.4.2021 constituted hearsay evidence, being statements about matters of which they had no personal knowledge. In Subramaniam v Public Prosecutor [1956] 22 MLJ 220 (Privy Council), it was held: “Evidence of a statement made to a witness by a person who is not himself called as witness... is hearsay and inadmissible when the object of the evidence is to establish the truth of what is contained in the statement.” The Plaintiff's reliance on PW1 and PW2 to prove non-delivery to Hualang infringes this fundamental rule of evidence. [106] The testimonies of PW1 and PW2 amount to what was described in Medan Prestasi Sdn Bhd v Ketua Pengarah Hasil Dalam Negeri [2023] MLJU 1477 (High Court) it was decided that where contemporaneous documentary evidence remains authentic and uncontradicted, bare oral assertions, intentions, or subjective explanations which are unsupported by independent evidence carry little or no probative value and cannot displace such documents. Such bare statements, unsupported by direct personal knowledge or contemporaneous documentation, cannot displace the compelling documentary evidence presented by the S/N 02hWGNrqt0aco8Lbp3PFqQ Defendants. The Plaintiff's witnesses could state only that they never saw the Hardware at MIBE's premises, but were unable to explain or contradict the extensive contemporaneous documentation evidencing delivery to Hualang. [107] The Plaintiff sought to rely on TPW1's testimony that goods were delivered to an “empty lot next to Maju Intan.” However, careful analysis of TPW1's evidence does not assist the Plaintiff's case. TPW1 (Muhamad Zaidi bin Abdullah), Shinryu's witness, provided direct first-hand testimony about the loading, transportation, and delivery of the Hardware. When examined on the Shinryu DO, TPW1 confirmed: “Yang menerima DO ini adalah Dato JP Tan daripada Hualang” (The person who received this DO was Dato' JP Tan from Hualang). TPW1 further testified that he was directed to deliver to Hualang and that delivery was made to Hualang's representative as instructed. [108] TPW1's evidence establishes that the delivery location was determined by and acceptable to the authorised recipient, Dato' JP Tan, who signed the Shinryu DO dated 15.4.2021 on behalf of Hualang with the company's official stamp. The Shinryu DO bears the notation “Received the above in good condition” with Dato' JP Tan's signature and Hualang's company stamp. The exact location within the broader Maju Intan site area is not determinative where, as here, the authorised contractual recipient accepted delivery according S/N 02hWGNrqt0aco8Lbp3PFqQ to their instructions and requirements. TPW1's testimony actually supports the case for delivery having been completed, as he confirmed that the goods were delivered to the location specified by Hualang's representative and that all proper delivery documentation was executed. [109] Against the inadequate oral evidence presented by the Plaintiff, the Defendants have presented compelling contemporaneous documentary evidence. The documentary evidence includes: a) The Shinryu DO dated 15.4.2021 with delivery date stated as 14.4.2021, signed by Dato' JP Tan as Group President of Hualang and stamped with Hualang's company stamp; b) the 1st Defendant's Delivery Note dated 28.6.2021; c) the Plaintiff's own Packing List dated 5.7.2021 bearing Hualang's company stamp and Dato' JP Tan's signature; d) the Plaintiff's Checklist for Hardware and Software Implementation dated 5.7.2021 with Hualang's company stamp and Dato' JP Tan's signature; and S/N 02hWGNrqt0aco8Lbp3PFqQ e) the Plaintiff's Certificate of Completion dated 6.7.2021 with endorsement by Hualang's company stamp and Dato' JP Tan's signature dated 7.7.2021. [110] Most significantly, the Plaintiff's own Chief Executive Officer, Ali bin Mustafa, provided explicit contemporaneous confirmation of delivery in his email dated 30.6.2021 at 7:40 PM. In this crucial communication, Ali bin Mustafa stated: “Please proceed with the acceptance. I duly aware of the situation and I did my verifications on the followings: 1. All documents are satisfactory in order. 2. Further clarifications being done personally with NEC as our supplier and Hualang as our customer on current site condition and related documentation.” This email was sent to the Plaintiff's internal personnel including PW3, who confirmed in cross-examination that the email demonstrated that Ali bin Mustafa had verified with Hualang directly regarding the delivery. [111] This email represents unequivocal contemporaneous evidence that the Plaintiff's highest officer had personally verified the delivery situation with both the 1st Defendant and Hualang before authorising acceptance. The language used by Ali bin Mustafa is clear and unambiguous. He conducted personal verifications with “Hualang as our customer on current site condition and related documentation.” The email was sent at a time when Ali bin Mustafa had no reason to fabricate or misrepresent the position, and it directly contradicts the Plaintiff's subsequent position that no proper S/N 02hWGNrqt0aco8Lbp3PFqQ delivery occurred. Following this verification, the Plaintiff proceeded to sign the delivery note and issue the Certificate of Completion, further confirming acceptance. [112] The principle established in Tindok Besar Estate Sdn Bhd v Tinjar Co [1979] 2 MLJ 229 (Federal Court) at page 234 is directly applicable to the present case. Chang Ming Tat FJ stated in that case that contemporaneous documentary evidence should be preferred over subsequent recollections. His Lordship held that judicial reception of evidence requires that oral evidence be critically tested against the whole of the other evidence and the circumstances of the case, and that contemporaneous documents provide more reliable evidence than witnesses' subsequent memories of events. [113] Similarly, in Foo Sam Ming v Archi Environ Partnership [2004] 1 MLJ 449 (Court of Appeal) at page 452, Gopal Sri Ram JCA (as he then was) held that courts should prefer contemporaneous documents over contradictory oral explanations. In the present case, the contemporaneous documentary evidence, particularly Ali bin Mustafa's email of 30.6.2021, the signed delivery orders, and the Certificate of Completion, must be preferred over the Plaintiff's subsequent assertions made nearly two years later, after Hualang refused payment. The documents were created at the material time by persons with direct knowledge and involvement, whereas the Plaintiff's current position is contradicted by its own contemporaneous conduct. S/N 02hWGNrqt0aco8Lbp3PFqQ [114] The Plaintiff's case fundamentally mischaracterises the nature of the delivery requirement under the contractual arrangements. The contractual obligation was to deliver the Hardware to Hualang at the Maju Intan Plant location. The evidence comprehensively establishes that: a) delivery was made to the authorised recipient, namely Hualang through its Group President, Dato' JP Tan; b) delivery was made at the Maju Intan Plant location as specified in the purchase orders and quotations; c) the recipient accepted delivery and executed proper documentation including the Shinryu DO with company stamp and authorised signature; and d) the Plaintiff's own CEO personally verified and confirmed delivery with the recipient before authorising the Plaintiff's acceptance. [115] The Plaintiff's attempt to distinguish between delivery “to MIBE” versus delivery “to Hualang” at the Maju Intan Plant location represents a fundamental misunderstanding of the contractual arrangements. MIBE was never the contractual recipient of the Hardware. The Plaintiff's own Purchase Order No. 4300037239/2300020035 dated 6.4.2021 explicitly states “REQUEST BY: Shamsul Fadhli 31171576 - HUALANG RENEWABLE ENERGY SDN BHD.” The quotations, S/N 02hWGNrqt0aco8Lbp3PFqQ purchase orders, and all delivery documentation consistently identified Hualang as the end-user and recipient. The delivery was to be made to Hualang at the plant location, which is precisely what occurred and was confirmed by all contemporaneous documentation. [116] The contemporaneous documentary evidence shows that the Plaintiff's CEO, Ali bin Mustafa, personally verified the delivery situation with Hualang before accepting it. The email dated 30.6.2021 contains explicit statements that he had conducted “personal verifications” and “further clarifications being done personally with NEC as our supplier and Hualang as our customer on current site condition and related documentation.” This demonstrates that the Plaintiff was fully aware of the delivery circumstances, including the precise location and condition of the Hardware, at the time of acceptance. PW3 admitted in cross-examination that based on the email, Ali bin Mustafa had verified with the customer directly regarding delivery. [117] Following Ali bin Mustafa's verification and express instruction to “proceed with the acceptance,” the Plaintiff signed the delivery note on 30.6.2021 and subsequently issued the Certificate of Completion dated 6.7.2021. The Certificate of Completion, signed by Ali bin Mustafa himself, certified that “All works on the above contract have been completed on the actual completion date noted below, to my satisfaction in accordance with the specification, provisions, S/N 02hWGNrqt0aco8Lbp3PFqQ and conditions of the contract. Installed on 14 April 2021.” This Certificate was then endorsed by Hualang through Dato' JP Tan as Group President on 7.7.2021. These actions are wholly inconsistent with any allegation of non-delivery or improper delivery. [118] The Plaintiff's credibility is fundamentally undermined by its failure to call Ali bin Mustafa, the CEO who personally verified delivery, signed the Certificate of Completion, and authorised acceptance. Ali bin Mustafa was listed in the Plaintiff's witness list at Enclosure 87, but the Plaintiff elected not to call him to testify. This is particularly significant given that Ali bin Mustafa was the most crucial witness regarding the verification of delivery and the decision to proceed with acceptance. Under Section 114(g) of the Evidence Act 1950, the court may presume that evidence which could be and is not produced would, if produced, be unfavourable to the person who withholds it. [119] The principle governing adverse inference is well-established. In Mohammad Azanul Haqimi bin Tuan Ahmad Azahari v Timbalan Menteri Dalam Negeri [2019] 6 MLJ 220 (Federal Court), the Federal Court held that the wilful withholding of available and material evidence entitles the court to presume that such evidence would have been unfavourable to the withholding party. Similarly, in Gurmit Kaur a/p Jaswant Singh v Tung Shin Hospital [2012] 4 MLJ 260 (High Court) and S/N 02hWGNrqt0aco8Lbp3PFqQ Chan Yoke Lain v Pacific & Orient Insurance Co [1999] 1 MLJ 30 (Court of Appeal), the courts affirmed that the failure to call material witnesses available to a party raises a presumption against that party. [120] In the present case, the Plaintiff not only failed to call Ali bin Mustafa but also failed to call any representative from Hualang, including Dato' JP Tan who signed all the delivery documentation. The Plaintiff also did not call other employees named in its witness list, including Encik Mohamad Tariq Bin Zakaria and Puan Rosnaiza Binti Hasan, both of whom were involved in the Project. The absence of these critical witnesses justifies the drawing of an adverse inference that their evidence would not have supported the Plaintiff's case and would have confirmed that delivery was properly made to Hualang at the Maju Intan Plant. [121] As established in Sri Datai Engineering Sdn Bhd v Daiho Corp [2016] MLJU 866 (Court of Appeal), a party who remains silent and allows other parties to act in reliance on its position cannot later deny that position. The Court of Appeal in that case stated: “I find this silence and lack of pursuit is in fact consistent with the defendant's assertion that the plaintiff has actually been fully paid for the costs and additional costs due to APC. That payment and receipt of payment as well as the plaintiff's subsequent conduct estops the plaintiff from now making the present claim.” S/N 02hWGNrqt0aco8Lbp3PFqQ [122] In the present case, the Plaintiff's acceptance of delivery through its CEO's email of 30.6.2021, followed by the signing of the delivery note, the issuance of the Certificate of Completion on 6.7.2021, the entry into the HPA on 1.9.2021, and almost two years of silence until Hualang refused payment in March 2022, clearly estops the Plaintiff from now challenging the delivery. The Plaintiff allowed the 1st Defendant to pay Shinryu the full sum of RM8,800,000.00 in September 2021 in reliance on the accepted delivery. The Plaintiff permitted the 2nd Defendant to disburse financing and issue payment to the 1st Defendant based on the same representations. All parties acted in reliance on the Plaintiff's contemporaneous acceptance of delivery. [123] I therefore find that the Hardware was delivered to the Maju Intan Plant on 14.4.2021 as evidenced by the contemporaneous documentation and confirmations. The delivery satisfied the contractual requirements by being made to the proper recipient, Hualang, through its authorised representative Dato' JP Tan, at the specified location. The Shinryu DO dated 15.4.2021, bearing Dato' JP Tan's signature and Hualang's company stamp, the 1st Defendant's delivery note, the Plaintiff's own delivery-related documents dated 5.7.2021 and 6.7.2021, and most critically, the Plaintiff's CEO's email dated 30.6.2021 confirming personal verification with Hualang, collectively constitute overwhelming evidence of proper delivery. The Plaintiff has wholly failed to discharge its burden of proving non-delivery or improper S/N 02hWGNrqt0aco8Lbp3PFqQ delivery, and the Plaintiff is estopped by its own contemporaneous conduct from now denying that delivery was completed. Issue 7: Discovery of Alleged Non-delivery [124] The Plaintiff submitted that it first became aware of Hualang’s assertion of non-delivery in or around March 2022, when it was pursuing payment of invoices for the Project. According to PW3, after several discussions regarding payment, Hualang denied the supply, delivery and installation of the Hardware around May 2022. [125] The Plaintiff’s position was that this issue only surfaced in the course of chasing payment, when Hualang asserted that delivery had not been made to the Maju Intan Plant. The Plaintiff contended that it subsequently received confirmation from MIBE’s solicitors on 25.8.2022 that the Hardware had not been supplied, delivered or installed at Maju Intan, and that Dato’ JP Tan lacked authority to act on behalf of MIBE. [126] Following this, the Plaintiff submitted that it formally raised the non-delivery issue with the Defendants by way of a letter dated 20.12.2022 to the 2nd Defendant, suspending further payments after conducting an internal investigation into the allegations. S/N 02hWGNrqt0aco8Lbp3PFqQ [127] The 1st Defendant submitted that it was only informed of the allegation of non-delivery in or around December 2022, when the 2nd Defendant showed it the Plaintiff’s letter dated 20.12.2022. It emphasised that this occurred more than 18 months after the completion of Phase 1 of the Project. [128] The 1st Defendant stressed that, prior to December 2022, it had received no notice whatsoever from Hualang of any alleged non-delivery, notwithstanding the existence of acceptance documents endorsed by both the Plaintiff and Hualang, subsequent discussions on Phases 2 and 3, and the fact that the 1st Defendant had paid Shinryu in full. [129] The 1st Defendant further submitted that it had provided proof of delivery to the Plaintiff as early as April 2021, and that no complaint of non-delivery was raised until December
It characterised this as an inordinate delay, which it argued seriously undermined the credibility of the Plaintiff’s non-delivery claim. [130] The evidence establishes that the Plaintiff first learned of Hualang's assertion of non-delivery in March 2022. This timing was confirmed by PW3 in cross-examination, who testified that around March 2022, the Plaintiff held discussions with Hualang regarding the Plaintiff's invoice for payment of the Project, and after several discussions with Hualang about payment, Hualang denied the supply, delivery and installation of the Hardware around May 2022. The S/N 02hWGNrqt0aco8Lbp3PFqQ critical fact admitted by PW3 is that this allegation coincided with Hualang's non-payment to the Plaintiff. When asked directly whether there was any document from Hualang issued to the Plaintiff stating that they had not received delivery, PW3 testified: “As far as I'm concerned, I've not received anything from Hualang, I've not no – no, no letters.” Thus, whilst I find that discovery did occur in or around March 2022 when Hualang refused payment, this discovery was not triggered by any independent investigation of delivery issues but rather by Hualang's refusal to make payment. [131] The Plaintiff's conduct from 15.4.2021 (when the Shinryu DO was signed) to March 2022 was wholly and unequivocally consistent with acceptance of delivery. First, the Plaintiff signed the Shinryu DO dated 14.4.2021 without protest. Second, on 30.6.2021, the Plaintiff's CEO, Ali bin Mustafa, issued his express email instruction to “proceed with the acceptance” based on his personal verifications with “Hualang as our customer on current site condition and related documentation.” Third, on 5.7.2021, the Plaintiff issued to Hualang the Packing List and Checklist for Hardware and Software Implementation. Fourth, on 6.7.2021, the Plaintiff's CEO signed the Certificate of Completion confirming that “all works on the above contract have been completed on the actual completion date noted below to my satisfaction in accordance with the specifications, provisions and conditions of the contract” with the installation date noted as 14.4.2021. Fifth, the Plaintiff proceeded with the hire S/N 02hWGNrqt0aco8Lbp3PFqQ purchase agreement with the 2nd Defendant on 1.9.2021. Sixth, the Plaintiff issued a bank guarantee and allowed payment of RM8,800,000.00 to be made to the 1st Defendant. All of these actions, spanning from April 2021 to September 2021 and beyond, demonstrate complete acceptance and acknowledgement of the delivery. [132] The Certificate of Completion dated 6.7.2021 carries particular weight in the analysis of the Plaintiff's knowledge and acceptance. This document was signed by Ali bin Mustafa in his capacity as Chief Executive Officer of the Plaintiff. PW3 confirmed in cross-examination that Ali bin Mustafa was the CEO at the time he signed the Certificate of Completion and that he was also a director of the Plaintiff at that time. The Certificate expressly stated that all works had been completed to the satisfaction of the Plaintiff in accordance with the contract specifications. This Certificate was then acknowledged and endorsed by Dato' JP Tan, Group President of Hualang, on 7.7.2021 with Hualang's company stamp affixed. PW3 also admitted in cross-examination that “from the email” he agreed that Ali bin Mustafa had verified with the customer directly regarding the delivery. This CEO-level verification and sign-off on completion documentation represents the highest level of corporate acknowledgement possible and directly contradicts any subsequent claim of non-delivery. S/N 02hWGNrqt0aco8Lbp3PFqQ [133] The Plaintiff's failure to call Ali bin Mustafa, the very CEO who signed the Certificate of Completion and verified delivery, constitutes a critical deficiency in the Plaintiff's case. Ali bin Mustafa was listed in the Plaintiff's own witness list, evidencing the Plaintiff's awareness that he was a material witness. PW3 testified that Ali bin Mustafa was suspended and later terminated from his position at the Plaintiff company, stating: “Due to this case, dia suspended... 2021, bila kita tahu benda ini, dah setahun, kan? Dan terus HR ambil tindakan dan dia suspend seven or nine months then lepas tu terminate.” Despite the availability of this witness and his central role in the acceptance of delivery, the Plaintiff elected not to call him to testify. Similarly, the Plaintiff failed to call Dato' JP Tan from Hualang, who had signed all the delivery documentation including the Certificate of Completion, Packing List, and Checklist. No one from Hualang testified to deny the authority to accept delivery or to challenge the authenticity of these documents. [134] Under section 114(g) of the Evidence Act 1950, the court may presume that evidence which could be and is not produced would, if produced, be unfavourable to the person who withholds it. This principle has been consistently applied by the Malaysian courts. In Mohammad Azanul Haqimi bin Tuan Ahmad Azahari v Timbalan Menteri Dalam Negeri, the Federal Court affirmed that the wilful withholding of available and material evidence entitles the court to presume that such evidence would have been unfavourable to the withholding S/N 02hWGNrqt0aco8Lbp3PFqQ party. In Gurmit Kaur a/p Jaswant Singh v Tung Shin Hospital, the High Court applied section 114(g) where a party failed to call material witnesses. Similarly, in Chan Yoke Lain v Pacific & Orient Insurance Co, the Court of Appeal invoked adverse inference against a party who failed to call witnesses with personal knowledge of the relevant facts. The Plaintiff bore the burden of proving non-delivery, yet failed to call the one person, Ali bin Mustafa, who signed the Certificate of Completion, who directed acceptance of the Shinryu DO, and who confirmed personal verifications with Hualang. The adverse inference that must be drawn is that had Ali bin Mustafa been called to testify, his evidence would not have supported the Plaintiff's allegation of non-delivery. [135] The circumstances surrounding the Plaintiff's discovery raise serious questions about the genuineness of the non-delivery claim. PW3's cross-examination testimony reveals the opportunistic nature of this alleged discovery. When asked whether it was correct that Hualang's denial of delivery coincided with their non-payment to the Plaintiff, PW3 answered “Yes.” Most tellingly, the Defendants put to PW3 that if Hualang had not refused to pay, the Plaintiff would not even have done anything about the Hardware, to which the proposition was not effectively contradicted. [136] The timing demonstrates that the Plaintiff's challenge to delivery arose not from any genuine concern about the Hardware's whereabouts, but from a commercial dispute over S/N 02hWGNrqt0aco8Lbp3PFqQ payment. For almost one year from the Certificate of Completion in July 2021, the Plaintiff engaged in ongoing discussions with Hualang about Phases 2 and 3 of the Project, sent invoices for payment, and conducted business as usual without any suggestion that the Phase 1 delivery had not been completed. This protracted period of silence and normal commercial dealings is wholly inconsistent with a genuine belief that the Hardware had never been delivered. [137] The Plaintiff's almost two-year delay from the date of delivery in April 2021 until the commencement of these proceedings amounts to acquiescence which bars the present claim. In Everbest Media Sdn Bhd v Law Wogt Media Sdn Bhd & Anor [2022] MLJU 2673, the High Court held that: “The conduct or non-action/silent of the Plaintiff in forwarding his claim all those years amounted to acquiescence. It cannot be said he was honest in his pursuit for the claim when at any point in time during those years, he could have discussed this with the Defendant, particularly so when they remained business associates.” [138] Similarly, in Sri Datai Engineering Sdn Bhd v Daiho Corp, the Court of Appeal held that where a party remains silent for a prolonged period and fails to pursue its claims, such conduct may give rise to an estoppel preventing that party from later asserting those claims, as the silence and inaction are consistent with an inference that the party had been fully paid and had accepted that position through its subsequent conduct. S/N 02hWGNrqt0aco8Lbp3PFqQ [139] The Plaintiff in the present case had multiple opportunities during the period from April 2021 to March 2022 to investigate, verify, and raise concerns about delivery. The Plaintiff's own project team, including Puan Rosnaiza as project manager, remained employed and available throughout this period yet no action was taken. This inordinate delay and inexplicable silence amounts to acquiescence. [140] Accordingly, whilst I find as a matter of fact that discovery occurred in or around March 2022, the delay of nearly one year from the Certificate of Completion, the opportunistic trigger of that discovery following payment issues with Hualang rather than any genuine investigation of delivery matters, and the Plaintiff's failure to call material witnesses who could have provided direct evidence regarding the delivery and verification processes, collectively amount to both acquiescence and estoppel. The Plaintiff is estopped by its own conduct, having signed the Shinryu DO, issued the Certificate of Completion through its CEO, proceeded with the hire purchase agreement, allowed payment to the 1st Defendant, and remained silent for nearly two years, from now denying that delivery was completed. The doctrine of estoppel prevents a party from asserting a position contrary to its previous conduct where other parties have relied upon that conduct to their detriment, as established in Sri Datai Engineering Sdn Bhd v Daiho Corp. The Plaintiff's contemporary acceptance of delivery, coupled with its S/N 02hWGNrqt0aco8Lbp3PFqQ prolonged acquiescence and failure to produce material witnesses, precludes it from now challenging the completion of delivery. Issue 8: Personal Verification by Plaintiff [141] The Plaintiff submitted that it had no meaningful opportunity to personally verify whether the Hardware was actually delivered to the Maju Intan Power Plant. Its position was that site visits were not permitted for almost two years, which prevented the Plaintiff from sending its own personnel to confirm delivery. [142] The Plaintiff maintained that during this period, it relied entirely on the representations of the 1st Defendant. It asserted that it was only after approximately two years that it finally obtained confirmation directly from officers at the Maju Intan Power Plant that no economizer or equipment had ever been delivered or installed at the plant. [143] In relation to the fact that Hualang’s signatures appeared on all delivery and completion documents, the Plaintiff submitted that these signatures were not obtained by the Plaintiff itself, but rather by the 1st Defendant through its representative and witness, DW2 (Hoo Foong Yan). The Plaintiff emphasised that it did not procure Hualang’s endorsements and merely accepted the documents and representations provided by the 1st Defendant in good faith, only discovering the alleged non-S/N 02hWGNrqt0aco8Lbp3PFqQ delivery much later when it was finally able to verify matters directly with Maju Intan personnel. [144] The 1st Defendant submitted that the Plaintiff’s case on this issue was fatally undermined by contemporaneous evidence which the Plaintiff had glossed over, namely that delivery was confirmed not only by the 1st Defendant but by the Plaintiff itself through its Chief Executive Officer, Encik Ali bin Mustafa. [145] The 1st Defendant relied heavily on Ali bin Mustafa’s email dated 30.6.2021 at 7:40 pm, in which he expressly stated that he was aware of the situation and had personally carried out due verification, including clarification with both the supplier and Hualang as the customer, before instructing that acceptance proceed. The 1st Defendant submitted that this email conclusively demonstrated that the Plaintiff had conducted its own independent verification of delivery prior to acceptance. [146] The 1st Defendant further submitted that it could not be accused of fraud, dishonesty, or recklessness when it had invited the Plaintiff to verify delivery, and the Plaintiff’s CEO had in fact done so. It argued that the Plaintiff’s attempt to contradict this documentary evidence rested solely on oral testimony from PW1, PW2 and PW3, none of whom had direct personal knowledge of the delivery, with PW1 and PW2 having joined after the material time. S/N 02hWGNrqt0aco8Lbp3PFqQ [147] Most critically, the 1st Defendant submitted that PW3 had no authority to contradict what the Plaintiff’s CEO had personally verified and accepted. It argued that the Plaintiff’s failure to call Encik Ali bin Mustafa, despite listing him as a witness, together with its decision not to call other material witnesses including Encik Mohamad Tariq, Puan Rosnaiza, and Dato’ JP Tan, warranted an adverse inference and significantly weakened the Plaintiff’s case on Issue 8. [148] I find that the Plaintiff did make personal verification of the delivery through its Chief Executive Officer, Ali bin Mustafa. The evidence on this issue is clear and contemporaneous. On 30.6.2021 at about 7.40 pm, after receiving photographs from the 1st Defendant, Ali bin Mustafa emailed PW3, Shamsul Fadhli bin Anuari, indicating that acceptance should proceed, that he was fully aware of the situation, had carried out due verification of the relevant documents and site conditions with both the supplier and the customer, and expressed concern that uncertainties arising from the Movement Control Orders could delay the overall project. This email is unequivocal in its terms and constitutes contemporaneous documentary evidence of the highest order. [149] The significance of Ali bin Mustafa's email cannot be overstated. As the Chief Executive Officer of the Plaintiff, he occupied the most senior executive position in the company and was directly involved in the Project from its inception. His S/N 02hWGNrqt0aco8Lbp3PFqQ email explicitly confirmed that he had personally verified the delivery situation with both the 1st Defendant and with Hualang (the Plaintiff's customer). The reference to “Hualang as our customer on current site condition and related documentation” demonstrates that Ali bin Mustafa made specific enquiries about the site condition and obtained confirmation regarding the delivery. This was not a perfunctory or casual acknowledgment, but rather a deliberate and informed verification by the Plaintiff's most senior officer. The email was sent at 7.40 pm on 30.6.2021, after the 1st Defendant had provided photographs at 6.57 pm and 7.11 pm on the same day, demonstrating that the verification was conducted in response to specific queries about the delivery. [150] Following Ali bin Mustafa's email verification, the Plaintiff proceeded to act in a manner entirely consistent with acceptance of delivery. On 30.6.2021 at 9.49 pm, the Plaintiff signed the 1st Defendant's delivery note, albeit through another officer (Rizal bin Saari) rather than through Ali bin Mustafa himself. Subsequently, on 5.7.2021, the Plaintiff issued a packing list and a checklist for hardware and software implementation. On 6.7.2021, the Plaintiff issued a Certificate of Completion which certified that all works had been completed to the Plaintiff's satisfaction, with the completion date stated as 14.4.2021. All three documents (the packing list, checklist, and Certificate of Completion) were prepared by the Plaintiff and were subsequently S/N 02hWGNrqt0aco8Lbp3PFqQ endorsed by Hualang through Dato' JP Tan, the Group President of Hualang. This sequence of events demonstrates a coherent and consistent pattern of acceptance and acknowledgment of delivery by the Plaintiff. [151] The principle governing the interpretation of such contemporaneous documents is well-established. In Asiapools (M) Sdn Bhd v IJM Construction Sdn Bhd [2010] 3 MLJ 7 (Court of Appeal), it was held that where the terms of a written contract are clear and unambiguous, the court must ascertain the parties’ mutual intention solely from the contract itself and construe its terms as expressed, without resort to extrinsic evidence or interpretive principles to override the unequivocally stated intention of the parties. The court stated: “In construing a written contract the professed object of the court was to discover the mutual intention of the parties. The intention of the parties must be ascertained from the document itself. Thus, the parties themselves cannot give direct evidence to show that their intentions were at variance with the provisions of the contract document. The task of the court is quite simple namely, to construe the contractual term without any pre-conception as to what the parties intended. When the minds of the parties are expressed in an unambiguous manner, the principle of construction which are at best only a guide in the search for the intention of the parties cannot be relied upon to override the declared intention of the parties unequivocally expressed in the contract document.” [152] Applying this principle, Ali bin Mustafa's email dated 30.6.2021 and the subsequent delivery note and completion documents all express an unambiguous intention on the part S/N 02hWGNrqt0aco8Lbp3PFqQ of the Plaintiff to accept and acknowledge delivery. The Plaintiff cannot now rely on subsequent oral evidence to contradict what was unequivocally expressed in these The legal significance of delivery orders and certificates of completion in cases involving the sale and delivery of goods is firmly established. In Caltex Oil Malaysia Ltd v Classic Best Sdn Bhd & Ors [2007] 4 MLJ 772 (High Court), it was held: “In coming to a decision in cases involving goods sold and delivered such as in this case, I would place due emphasis on the written documents, namely the statement of accounts, invoices, delivery orders, delivery notes and the debit notes. These documents would collectively constitute a contract reduced into writing.” [153] Similarly, in Pernas Trading Sdn Bhd v Persatuan Peladang Bakti Melaka [1979] 2 MLJ 124 (Federal Court), the court stated: “There is however, no denial by the respondents that the goods were ordered by them and delivered to them. There is also no dispute as to the genuineness of the sales invoice and the delivery note on which the appellants' case is founded. In our view, the respondents' contention that goods were not ordered on their behalf must fail in view of the sales invoice and the delivery note.” [154] In the present case, the authenticity of the delivery note, packing list, checklist, and Certificate of Completion has not been disputed by the Plaintiff. These documents collectively S/N 02hWGNrqt0aco8Lbp3PFqQ establish that delivery was acknowledged and accepted by the Plaintiff. [155] The Plaintiff's case on personal verification is further undermined by the admissions made by PW3 in cross-examination. When questioned by counsel for the 1st Defendant regarding Ali bin Mustafa's email, PW3 conceded that based on the email, Ali bin Mustafa had verified with Hualang as the customer. The relevant exchange was as follows: “ECH: So I'm going to put to you that Encik Ali here has actually verified with the customer directly of the delivery. Agree or disagree? PW3: Uh, from the email... ECH: Agree or disagree? That's my, that's my question. PW3: Correct. From the email, agree.” [156] This admission by the Plaintiff's own witness confirms that Ali bin Mustafa had indeed conducted verification with Hualang regarding the delivery. PW3 further admitted that he himself did not personally verify with Hualang, thereby acknowledging that the verification was conducted at a higher level within the Plaintiff's organisation by the Chief Executive Officer. S/N 02hWGNrqt0aco8Lbp3PFqQ [157] The most significant evidential deficiency in the Plaintiff's case is the failure to call Ali bin Mustafa as a witness. Ali bin Mustafa was listed in the Plaintiff's own witness list but was not called to testify. He was the person who sent the verification email on 30.6.2021, who signed the Certificate of Completion on 6.7.2021, and who, as Chief Executive Officer, had the authority to make decisions regarding acceptance of delivery. His evidence would have been directly material to the question of whether the Plaintiff had made personal verification of delivery and whether the Plaintiff had genuinely accepted delivery at the material time. Under section 114(g) of the Evidence Act 1950, the court may presume that evidence which could be and is not produced would, if produced, be unfavourable to the person who withholds it. This principle was affirmed by the Federal Court in Mohammad Azanul Haqimi bin Tuan Ahmad Azahari v Timbalan Menteri Dalam Negeri, where it was held that the wilful withholding of available and material evidence entitles the court to presume such evidence would have been unfavourable to the withholding party. I draw an adverse inference against the Plaintiff for its failure to call Ali bin Mustafa as a witness. [158] Accordingly, I hold that the Plaintiff did verify delivery with Hualang through its Chief Executive Officer, Ali bin Mustafa, on 30.6.2021. The verification was explicitly stated in Ali bin Mustafa's contemporaneous email and was followed by the Plaintiff's execution of the delivery note on 30.6.2021 and the S/N 02hWGNrqt0aco8Lbp3PFqQ issuance of the packing list, checklist, and Certificate of Completion in early July 2021. All of these documents constitute valid acknowledgments of delivery by the Plaintiff. The Plaintiff's attempt to resile from these acknowledgments more than a year later cannot succeed in the face of such clear and contemporaneous documentary evidence, particularly where the Plaintiff has failed to call the key witness (Ali bin Mustafa) who was directly responsible for the verification and acknowledgment of delivery. Issue 9: Estoppel [159] Plaintiff’s The Plaintiff submitted that no estoppel arose, as there was neither delay nor acquiescence on its part. It argued that site visits were not permitted at the material time due to the COVID-19 pandemic and Movement Control Orders, which prevented the Plaintiff from verifying delivery through its own personnel. As a result, the Plaintiff contended that it had no practical choice but to rely on the representations of the 1st Defendant. [160] The Plaintiff further submitted that Hualang, through Dato’ JP Tan, repeatedly refused or delayed site visits, thereby preventing timely verification. It maintained that the alleged non-delivery only came to light almost two years later, when confirmation was finally obtained directly from officers at the Maju Intan Power Plant that no economiser or equipment had been delivered or installed. The Plaintiff emphasised that S/N 02hWGNrqt0aco8Lbp3PFqQ Hualang’s signatures on the delivery documents were procured by the 1st Defendant’s representative, not by the Plaintiff, and that the Plaintiff accepted those documents and representations in good faith, without knowledge of any alleged non-delivery. [161] The 1st Defendant submitted that the Plaintiff was clearly estopped by its own conduct from denying delivery. It argued that the Plaintiff took nearly two years from the alleged delivery in April 2021 to raise any complaint, amounting to inordinate delay and acquiescence. The 1st Defendant highlighted PW3’s admission under cross-examination that had Hualang paid the Plaintiff, no issue of non-delivery would have been raised, demonstrating that the claim was opportunistic. [162] The 1st Defendant pointed to a consistent pattern of conduct by the Plaintiff evidencing acceptance of delivery, including signing the delivery note on 30.6.2021, issuing a Certificate of Completion on 6.7.2021, preparing and signing packing lists and checklists, entering into the hire purchase agreement, making payments exceeding RM5 million, and allowing full payment of RM8.8 million to be released to the Third Party. It submitted that despite having multiple opportunities between April 2021 and March 2022 to investigate delivery, the Plaintiff remained silent, continued business dealings, and even discussed Phases 2 and 3 of the Project. In these circumstances, the 1st Defendant argued that all parties S/N 02hWGNrqt0aco8Lbp3PFqQ relied on the Plaintiff’s representations with serious financial consequences, and it would be unconscionable to permit the Plaintiff to now resile from its clear and contemporaneous acknowledgments of delivery. [163] The Plaintiff is estopped by its conduct from denying that delivery was completed. The principle of estoppel by conduct operates where a party has by its actions or representations led another to act to their detriment in reliance upon the position adopted. The contemporaneous documentary evidence in this case demonstrates a pattern of consistent acknowledgment of delivery through multiple signed documents executed over several months. On 15.4.2021, Hualang's Group President, Dato' JP Tan, signed the Shinryu DO acknowledging receipt. Later on 30.6.2021, the Plaintiff’s then CEO, Ali bin Mustafa, sent an email expressly confirming that he was aware of the situation and had personally verified that the documents were in order and that further clarification on the site conditions and related documentation had been obtained directly from both the supplier, the 1st Defendant and Hualang. [164] Following this verification, the Plaintiff signed the 1st Defendant's delivery note on 30.6.2021. The Plaintiff then prepared and issued three critical completion documents: first, a packing list dated 5.7.2021 signed by the Plaintiff's Encik Rizal bin Saari and acknowledged by Dato' JP Tan with Hualang's company stamp; second, a checklist for hardware S/N 02hWGNrqt0aco8Lbp3PFqQ and software implementation also dated 5.7.2021 similarly executed; and third, a Certificate of Completion dated 6.7.2021 signed by the Plaintiff's Chief Executive Officer Ali bin Mustafa stating “All works on the above contract have been completed on the actual completion date noted below, to my satisfaction in accordance with the specification, provisions, and conditions of the contract. Installed on 14 April 2021”, which document was endorsed by Dato' JP Tan with Hualang's company stamp on 7.7.2021. [165] The legal principles governing the evidential weight of delivery documentation are well-established. As held in Caltex Oil Malaysia Ltd v Classic Best Sdn Bhd & Ors, in coming to a decision in cases involving goods sold and delivered, due emphasis should be placed on the written documents, namely the statement of accounts, invoices, delivery orders, delivery notes, and debit notes, as these documents collectively constitute a contract reduced into writing. This principle finds further support in Pernas Trading Sdn Bhd v Persatuan Peladang Bakti Melaka, where the Federal Court held that there was no denial that the goods were ordered and delivered, nor any dispute as to the genuineness of the sales invoice and delivery note on which the claim was founded, and accordingly the contention that the goods were not ordered on behalf of the party concerned had to fail in light of those documents. S/N 02hWGNrqt0aco8Lbp3PFqQ [166] Similarly, in Sri Minal Construction Sdn Bhd v Mobil Oil Malaysia Sdn Bhd [2006] 1 MLJ 746 (High Court), it was held that where delivery orders were signed acknowledging delivery as ordered and invoices were not questioned, the party acknowledging receipt of consignments would be deprived of merit in any defence of non-delivery. In Golden Clay Industries Sdn Bhd v Petronas Dagangan Berhad [2017] MLJU 7 (High Court), the court emphasised that by signing and stamping a delivery note stating that goods were received in good condition and in sufficient amount, the recipient clearly acknowledged satisfaction with the delivery and could not subsequently dispute it. The Plaintiff's conduct in accepting and signing all delivery documentation without protest or qualification constitutes unequivocal acknowledgment. [167] The doctrine of estoppel is further fortified by the Plaintiff's subsequent actions demonstrating reliance upon the completion of delivery. Following the execution of the Certificate of Completion in July 2021, the Plaintiff proceeded to finalise the hire purchase agreement with the 2nd Defendant on 1.9.2021, providing therein for an irrevocable and unconditional bank guarantee to secure performance of its obligations. The Plaintiff's conduct was wholly consistent with acceptance that delivery had been properly completed. The hire purchase financing arrangement had been under negotiation since February-March 2021, with the 2nd Defendant giving its first approval on 18.3.2021, and the S/N 02hWGNrqt0aco8Lbp3PFqQ ultimate execution in September 2021 followed directly from the completion documentation issued in July 2021. The Plaintiff made payments totalling RM5,655,262.10 under this arrangement and issued the bank guarantee as required. The 1st Defendant, in reliance upon the Plaintiff's representations through these documents and the CEO's verification, released full payment of RM8,800,000.00 to the Third Party in three tranches. These actions by all parties demonstrate that the delivery documentation was accepted as genuine and acted upon with significant financial consequences. [168] The principle of estoppel arising from prolonged silence and acquiescence is directly applicable to the present circumstances. The Plaintiff maintained complete silence regarding any alleged non-delivery from April 2021 until December 2022, a period of almost two years. As PW3 admitted in cross-examination, the Plaintiff only raised the issue of alleged non-delivery in March 2022 after Hualang refused to make payment to the Plaintiff. PW3 testified: “Ia bermula apabila HRE gagal membayar invois Plaintif yang telah dikejar beberapa kali termasuk pengaturan untuk pemeriksaan tapak Power Plant tersebut sepanjang masa itu...” [169] In Everbest Media Sdn Bhd v Law Wogt Media Sdn Bhd & Anor, the court held that where a party’s prolonged conduct, non-action, or silence in pursuing a claim extended over many years, such inaction amounted to acquiescence, and it S/N 02hWGNrqt0aco8Lbp3PFqQ could not be said that the pursuit of the claim was honest when the matter could at any time have been raised and discussed, particularly where the parties remained business associates. [170] Similarly, in Sri Datai Engineering Sdn Bhd v Daiho Corp, where a party remained silent and failed to write in relation to its alleged claims despite regular inquiries, the court held that such silence and lack of pursuit were inconsistent with the existence of any outstanding entitlement, and were instead consistent with the assertion that full payment had already been made, with the payment, receipt of payment, and subsequent conduct operating to estop that party from advancing the later claim. [171] The totality of the Plaintiff’s conduct renders it unconscionable to now permit a denial of delivery. The Plaintiff executed formal completion documentation through its Chief Executive Officer, obtained the necessary acknowledgments from its customer Hualang, entered into substantial financing arrangements with the 2nd Defendant in reliance upon completed delivery, and allowed the 1st Defendant to make full payment to the Third Party. [172] Further, the Plaintiff maintained complete silence for almost two years and only raised the issue of non-delivery after payment difficulties arose with Hualang. Its present attempt to S/N 02hWGNrqt0aco8Lbp3PFqQ challenge delivery is therefore directly inconsistent with its own contemporaneous actions and representations. [173] Commercial certainty and fairness require that parties be held to the positions they have deliberately adopted through formal documentation and conduct, particularly where others have acted in reliance thereon to their detriment. To permit the Plaintiff to now resile from its clear acceptance of delivery would render the extensive documentation meaningless, undermine the integrity of commercial dealings, and unjustly impose loss on parties who acted in good faith upon the Plaintiff’s representations. [174] Accordingly, the principles of estoppel, acquiescence, and laches operate to preclude the Plaintiff from denying that delivery was completed. The Plaintiff is bound by its conduct in accepting delivery documentation without protest, proceeding with the bank guarantee and financing arrangements, and remaining silent for almost two years before raising any challenge. Analysis of Misrepresentation Claims Failure of Claims Predicated on False Premise [175] Having found as a matter of fact that proper delivery was made to the contractual recipient, Hualang, at the specified location of the Maju Intan Plant, the Plaintiff’s claims for both S/N 02hWGNrqt0aco8Lbp3PFqQ fraudulent and negligent misrepresentation fail at the threshold. Both causes of action are fundamentally premised on the assertion that no delivery occurred, a premise which has been rejected on the totality of the evidence. [176] The court has found that Shinryu delivered the Hardware to Hualang at the Maju Intan Plant on 14.4.2021. This finding is supported by the Shinryu delivery order dated 15.4.2021 signed by Dato’ JP Tan on behalf of Hualang, the photographs showing the Hardware at the site, and the Plaintiff’s own Chief Executive Officer’s email dated 30.6.2021, in which delivery was expressly verified with Hualang. [177] Further, the Plaintiff’s own contemporaneous documentation confirms acceptance of delivery. These include the delivery order signed by Rizal bin Saari on 30.6.2021, the certificate of completion signed by Ali bin Mustafa on 6.7.2021, and the accompanying packing list and checklist. Taken together, these documents demonstrate that the representations made by the 1st Defendant regarding delivery were accurate and truthful. [178] Where the factual foundation of the misrepresentation claim, namely that delivery did not occur, has been disproved, the claim cannot succeed regardless of whether it is framed as fraudulent or negligent misrepresentation. S/N 02hWGNrqt0aco8Lbp3PFqQ Deficiencies in Pleading Fraudulent Misrepresentation [179] Furthermore, the Plaintiff's pleadings regarding fraudulent misrepresentation are fatally defective for failure to plead sufficient particulars of the 1st Defendant's alleged fraudulent intent, knowledge of falsity, or reckless indifference to truth. Order 18 rule 12(1) of the Rules of Court 2012 mandates that every pleading shall contain the necessary particulars of any misrepresentation or fraud relied upon, and where a party alleges any fraudulent intention or other condition of mind, particulars of the facts on which the party relies must be contained in the pleading. [180] The High Court in Accolade Land Sdn Bhd v Mass Rapid Transit Corporation Sdn Bhd & Ors [2017] MLJU 1868 held that the Statement of Claim must show the nature and extent of each allegation, and that “the necessary particulars of the fraudulent intention relied on must also be contained in the pleading, in that it must be shown how D4 was actuated by a fraudulent representation” and further stated that “One cannot escape the conclusion after a scrutiny of the Statement of Claim, scanty and skimpy considering the seriousness of the misrepresentation, that all that was pleaded is a bare and general allegation of misrepresentation. The non particularization of a misrepresentation, whether fraudulent or negligent is fatal to the Plaintiff's case.” S/N 02hWGNrqt0aco8Lbp3PFqQ [181] In the present case, paragraph 19 of the Amended Statement of Claim merely states that “Defendan Pertama membuat Representasi tersebut dengan pengetahuan atau sepatutnya tahu bahawa Representasi tersebut adalah palsu dan tidak benar atau secara melulu dan tanpa mengendahkan sama ada Representasi tersebut benar atau palsu.” This constitutes nothing more than a general statement of misrepresentation without particularising how the 1st Defendant acted with knowledge of falsity, fraudulent intent, or reckless disregard for truth. [182] Notably, the wordings “fraud” or “deceit” do not appear in the pleadings, and no specific facts demonstrating dishonesty, intent to deceive, or recklessness were pleaded. Higher Evidentiary Burden Not Discharged [183] Without prejudice to the foregoing deficiency in pleadings, even if the court were to permit the Plaintiff to advance its case on fraudulent misrepresentation, the claim must fail on the evidence. The High Court in ABS Solution (S) Pte Ltd v Lim Teck Hoe & Anor [2024] MLJU 3491 explained: “Fraudulent misrepresentation undoubtedly imposes a higher evidentiary burden, as it requires the plaintiff to establish the defendant's state of mind. Specifically, the plaintiff must demonstrate that M Can, through D1, knowingly made false representations with the intent to induce the plaintiff to enter into the agreement.” S/N 02hWGNrqt0aco8Lbp3PFqQ [184] To succeed in a claim for fraudulent misrepresentation, the Plaintiff must establish five essential elements as set out in Top Glove Corporation Bhd & Anor v Low Chin Guan & Ors [2018] MLJU 1179 by the High Court, namely: a) there must be a representation of fact made by words or conduct; b) the representation must be made with knowledge that it is false, or it must be wilfully false or at least made in the absence of any genuine belief that it is true or recklessly without caring whether the representation is true or false; c) the representation must be made with the intention that it should be acted upon by the claimant in the manner which resulted in damage; d) it must be proved that the claimant acted upon the false statements; and e) it must be proved that the claimant has sustained damage by so doing. [185] In the present case, the Plaintiff has adduced no evidence whatsoever demonstrating that the 1st Defendant knew the representations regarding delivery were false, acted with intent to deceive, or made the representations with reckless S/N 02hWGNrqt0aco8Lbp3PFqQ disregard for their truth. The representations were based on confirmations received from Shinryu (the appointed supplier), Hualang (the recipient), and the Plaintiff's own CEO, and the 1st Defendant had paid RM8,800,000.00 to Shinryu for the supply and delivery. [186] It is wholly illogical to suggest that the 1st Defendant would fabricate or misrepresent delivery when it had substantial financial outlay dependent on actual delivery having occurred. Negligent Misrepresentation [187] Turning to the alternative claim for negligent misrepresentation, this claim also fails for multiple reasons. [188] First, even assuming arguendo that some duty of care existed (which I do not find), there was no breach of such duty because the representations about delivery were accurate and truthful. The evidence establishes that delivery was in fact made to Hualang at the Maju Intan Plant location as represented. The 1st Defendant's representations were based on confirmations from multiple independent sources and were corroborated by contemporaneous documentary evidence. S/N 02hWGNrqt0aco8Lbp3PFqQ [189] Second, the Plaintiff has failed to establish the existence of a special relationship giving rise to a duty of care in tort. At paragraph 20 of the Amended Statement of Claim, the Plaintiff pleaded that the 1st Defendant owed a duty of care because of the COVID-19 pandemic and Movement Control Orders then in place. However, as held in Bauer (Malaysia) Sdn Bhd v Hundred Vision Construction Sdn Bhd & Anor [2020] MLJU 543 by the High Court, “The Court would be slow to impose or identify a duty of care especially where the parties have allocated their risks and liabilities exhaustively especially with reference to standard form contracts used in their particular industry” and “As a matter of policy the Court would generally not impose or identify a duty of care in tort unless that duty is co extensive with its duties in contract between the party suing and the party being sued in the negligence claim.” [190] The existence of a pandemic and movement restrictions does not create a special relationship or duty of care in tort between commercial parties who have a contractual relationship. The Plaintiff's attempt in submissions to recharacterise the basis of the duty of care by reference to the transaction structure represents an impermissible departure from the pleaded case, and in any event fails to establish the requisite special relationship as explained in Sim Thong Realty Sdn Bhd v Teh Kim Dar [2003] 3 CLJ 227 by the Court of Appeal, where Gopal Sri Ram JCA (as he then was) stated: S/N 02hWGNrqt0aco8Lbp3PFqQ “If the misrepresentation was made negligently, the remedy of the representee lies in damages in the tort of negligence under the assumption of responsibility and reliance doctrine laid down in Hedley Byrne & Co Ltd v. Heller & Partners [1964] AC 465. In such a case the representee must plead and prove a special relationship giving rise to a duty of care as well as the other elements that go to constitute the tort of negligence.” Fundamental Failure to Establish Falsity of Representations [191] Most fundamentally, both the claims for fraudulent and negligent misrepresentation fail because the Plaintiff has not established that the representations made by the 1st Defendant were false, which is an essential element of any claim in misrepresentation. [192] In Sim Thong Realty, the Court of Appeal stated that the elements of an actionable misrepresentation are well settled, and that a misrepresentation is “an unambiguous, false statement of fact” which is addressed to the party misled and materially induces the contract. In the present case, the 1st Defendant represented that delivery had been made to Hualang at the Maju Intan Plant location. This representation was not false as delivery was in fact made as represented, as I have found on the evidence. [193] The Plaintiff's pleaded particulars of falsity at paragraph 18 of the Amended Statement of Claim rest on a conflation between MIBE (the corporate entity operating the plant) and Hualang (the contractual recipient). The contemporaneous S/N 02hWGNrqt0aco8Lbp3PFqQ documents clearly establish that Hualang, not MIBE, was the Plaintiff's customer and the intended recipient of the Hardware. [194] The representations regarding delivery were accurate, and the Plaintiff is estopped by its own conduct from now denying the truth of those representations. Accordingly, the Plaintiff has failed to establish the fundamental requirement that the representations were false, and both claims for fraudulent and negligent misrepresentation must be dismissed. Conclusion [195] For the foregoing reasons, I find that the Plaintiff's claim against the 1st Defendant for misrepresentation is wholly without merit and must be dismissed. The Plaintiff has fundamentally failed to establish the essential elements of its pleaded case. Most critically, the Hardware was in fact delivered to Hualang at the Maju Intan Plant location as contractually required, rendering the alleged representations by the 1st Defendant truthful rather than false. The Plaintiff is estopped from denying delivery by virtue of its own conduct and acquiescence. Accordingly, the Plaintiff's claim against the 1st Defendant is dismissed with costs. S/N 02hWGNrqt0aco8Lbp3PFqQ PLAINTIFF'S CLAIM AGAINST THE 2ND DEFENDANT The Plaintiff's Case [196] The Plaintiff's case against the 2nd Defendant is stated as below. [197] The financing arrangement between the Plaintiff and the 2nd Defendant arose from the Plaintiff's need to ease its financial burden when making payments to the 1st Defendant. Sometime in or around March 2021, the Plaintiff requested such an arrangement. For this purpose, the 1st Defendant introduced the 2nd Defendant into the parties' discussions. [198] Initially, the 2nd Defendant approved financing to the Plaintiff prior to the issuance of purchase orders for Phase 1, 2 and 3, subject to conditions including, inter alia, an irrevocable and unconditional corporate guarantee from the Plaintiff's holding company, FGV Holdings Berhad. However, sometime in or around June to July 2021, the Plaintiff and the 2nd Defendant agreed to a financing arrangement whereby: a) the Plaintiff would provide a bank guarantee as collateral instead of the corporate guarantee; b) the 2nd Defendant would issue a letter of undertaking to make full payment to the 1st Defendant for the sensor device upon completion of delivery; S/N 02hWGNrqt0aco8Lbp3PFqQ c) the Plaintiff would then pay the 2nd Defendant in instalments by entering into the HPA; and d) to effect the financing arrangement, the Plaintiff issued to the 2nd Defendant another purchase order no. 4300037508/2300020293. [199] On 25.8.2021, the Plaintiff cancelled its Purchase Order 4300037329/2300020035 to the 1st Defendant related to the three Economizer Section Modules. This purchase order was replaced with Purchase Order 4300037508/2300020293 to facilitate the financing arrangement with the 2nd Defendant. [200] On 1.9.2021, the Plaintiff entered into the HPA with the 2nd Defendant with reference number MYIS2100005 for the sum of RM10,158,824.00 payable in 36 monthly instalments of RM282,134.00. The Plaintiff provided a bank guarantee issued by Maybank Islamic Berhad with reference number 99140BGR638700 as collateral for the HPA. [201] The Plaintiff's case rests on the premise that it entered into the HPA with the 2nd Defendant in reliance on the Representation made by the 1st Defendant. The Plaintiff contends that had it known the true position regarding non-delivery of the Hardware to the Maju Intan Plant, it would not have proceeded with the HPA. The Plaintiff was unable to conduct physical verification due to COVID-19 pandemic conditions and Movement Control Orders in place at the S/N 02hWGNrqt0aco8Lbp3PFqQ material time, and therefore had no choice but to trust the 1st Defendant's representations about delivery. [202] Based on these alleged misrepresentations from the 1st Defendant, the Plaintiff signed off on the acceptance of the goods and proceeded with entering into the HPA and making payments towards the 2nd Defendant. The Plaintiff paid instalments totalling RM9,651,763.10 to the 2nd Defendant pursuant to the HPA. [203] The Plaintiff subsequently discovered that the Hardware was not delivered to the Maju Intan Plant. In an effort to mitigate its losses, the Plaintiff suspended further payments to the 2nd Defendant on 7.10.2022 pending further investigation into the HPA and to obtain legal and expert advice. [204] On 16.3.2023, the 2nd Defendant sent a letter to Maybank Islamic Berhad to claim RM5,655,262.10 from the bank guarantee provided by the Plaintiff, which sum was paid on 20.3.2023. [205] The Plaintiff's claim against the 2nd Defendant proceeds on three alternative bases. [206] First, the Plaintiff contends that because the Representation was false and untrue, the HPA should be declared void under section 19(1) of the Contracts Act 1950. The Plaintiff entered into the HPA believing that the Hardware had been delivered S/N 02hWGNrqt0aco8Lbp3PFqQ and installed at the Maju Intan Plant as represented by the 1st Defendant. [207] Second, the Plaintiff contends that the HPA is void for want of consideration. Under Article 1 of the HPA, the 2nd Defendant had an obligation to lease the Hardware to the Plaintiff. However, since the Representation was false and the Hardware was not delivered, the 2nd Defendant completely failed to perform its obligation under Article 1 of the HPA, thereby causing the agreed consideration to fail entirely. The Plaintiff paid RM9,651,763.10 for Hardware that was never leased to it in accordance with Article 1 of the HPA. Additionally, the Plaintiff paid RM5,655,262.10 pursuant to the bank guarantee claim by the 2nd Defendant. [208] Third, in the alternative, the Plaintiff contends that the 2nd Defendant has been unjustly enriched at the Plaintiff's expense. The 2nd Defendant obtained a right to claim RM10,158,824.00 from the Plaintiff, of which RM9,651,763.10 was paid, for Hardware that was not leased to the Plaintiff in accordance with Article 1 of the HPA. [209] Based on these alternative bases, the Plaintiff sought the following reliefs against the 2nd Defendant as pleaded in the Amended Statement of Claim. S/N 02hWGNrqt0aco8Lbp3PFqQ [210] Primarily, the Plaintiff sought a declaration that the HPA dated 1.9.2021, entered into between the Plaintiff and the 2nd Defendant, be declared void and invalid on the ground of total failure of consideration, or alternatively, a declaration that the 2nd Defendant had completely failed to discharge its obligations under the hire purchase agreement and that, by reason thereof, the agreement is void. [211] Consequent upon such declarations, the Plaintiff sought corresponding declarations that the bank guarantee issued by Maybank Islamic Berhad bearing reference number 99140BGR6383700, furnished pursuant to the Plaintiff’s instructions, be likewise declared void and invalid, either on the basis that it was provided as consideration for a hire purchase agreement which has totally failed in consideration, or alternatively because the 2nd Defendant had completely failed to discharge its obligations under the hire purchase agreement. [212] The Plaintiff further sought an order for repayment by the 2nd Defendant of the sum of RM9,651,763.10, representing instalments paid under the hire purchase agreement, together with general damages, aggravated damages, exemplary damages, and special damages quantified at RM198,331.96. S/N 02hWGNrqt0aco8Lbp3PFqQ The 2nd Defendant's Case [213] The 2nd Defendant's case in the Plaintiff's claim against the 2nd Defendant is stated as below. [214] The 2nd Defendant's position is straightforward: it was an innocent party serving merely as the financier for the Economizer to the Plaintiff. The 2nd Defendant provided financial services and disbursed money for the financing of the Economizer; hence, as the financier, the 2nd Defendant was entitled to be paid. [215] The 2nd Defendant contends that it thoroughly checked all proper documentation that came from the Plaintiff throughout the process and before the disbursement of financing. This documentation included, among others, confirmation by the Plaintiff's Chief Executive Officer, Encik Ali bin Mustafa, confirming on 30.6.2021 that delivery had been completed. Encik Ali specifically stated: “Please proceed with the acceptance. I duly aware of the situation and I did my due verifications on the followings: 1. All documents are satisfactorily in order.
Further clarifications being done personally with NEC as our supplier and Hualang as our customer on current site condition and related documentations.” S/N 02hWGNrqt0aco8Lbp3PFqQ [216] Having gone through their checklist and received proper documentation and confirmation from the Plaintiff's own Chief Executive Officer, the 2nd Defendant was obligated to release the financing. [217] The 2nd Defendant's submissions emphasise the timeline of events. Negotiations between the Plaintiff and the 2nd Defendant commenced as early as February 2021, with the 2nd Defendant giving its first approval on 18.3.2021, well before any alleged representations about delivery. Discussions regarding the HPA started in February 2021, and the 2nd Defendant spoke to a representative named Aiman, together with his financing team from the Plaintiff. This demonstrates that the financing arrangements were already in train before the alleged representations that form the basis of the Plaintiff's claim, and that the Plaintiff's financing team was actively negotiating with the 2nd Defendant independently. [218] The 2nd Defendant contends that valid consideration existed for the HPA in the form of financing services provided by the 2nd Defendant. The 2nd Defendant fulfilled its contractual obligations by disbursing the financing based on proper documentation and verification procedures that were in place. The fact that disputes may have arisen regarding delivery between other parties does not retrospectively negate the consideration provided at the time of contract formation on 1.9.2021. S/N 02hWGNrqt0aco8Lbp3PFqQ [219] The 2nd Defendant emphasises that all issues raised by the Plaintiff against it pertain solely to the consideration for the HPA. These issues require matters of delivery to be ascertained between the Plaintiff and the 1st Defendant, not the 2nd Defendant. The 2nd Defendant, as financier, had no direct involvement in the underlying transaction regarding delivery of Hardware and had no contractual relationship with Hualang or Shinryu. [220] The 2nd Defendant performed all obligations required under the HPA by providing the financing upon receipt of proper documentation confirming that conditions precedent had been satisfied. The validity and enforceability of the HPA should therefore be upheld, and the Plaintiff remains obligated to perform its payment obligations under the HPA. Issues [221] The following issues were submitted by the Plaintiff and 2nd Defendant relating to the Plaintiff's claim against the 2nd Defendant: a) Issue 10: Whether the Plaintiff entered into the HPA with the 2nd Defendant in reliance on any representations from the 1st Defendant? b) Issue 11: If the Representations made by the 1st Defendant were false and/or made negligently, is the S/N 02hWGNrqt0aco8Lbp3PFqQ HPA between the Plaintiff and the 2nd Defendant reference number MYIS2100005 dated 1.9.2021 void? c) Issue 12: Whether the HPA between the Plaintiff and the 2nd Defendant is void for want of consideration? Analysis and Findings Issue 10: Reliance on Representations [222] The Plaintiff submitted that it had no choice but to trust the 1st Defendant's representations that the goods were delivered to the correct location due to the COVID-19 pandemic and Movement Control Orders, and that based on these representations, the Plaintiff signed off on the acceptance of the goods and proceeded with the payment towards the 2nd Defendant. The Plaintiff's case rested on the contention that it was unable to conduct physical verification due to pandemic conditions and Movement Control Orders in place at the material time. The Plaintiff pleaded in paragraph 20 of its Amended Statement of Claim that the 1st Defendant had an obligation to act with all reasonable care and skill in ensuring the representation was true because of the COVID- 19 pandemic and Movement Control Orders enforced by the Malaysian Government together with the State Governments including the Selangor State Government and Perak State Government. The Plaintiff further contended that had it known the true position regarding non-delivery of the Hardware to S/N 02hWGNrqt0aco8Lbp3PFqQ the Maju Intan Plant, it would not have proceeded with entering the HPA with the 2nd Defendant. [223] The 1st Defendant submitted that no evidence was called by the Plaintiff to suggest that Ali bin Mustafa had relied on representations made by the 1st Defendant instead of his own personal verification which was recorded in his email dated 30.6.2021. The 1st Defendant emphasised that the purported reliance pleaded by the Plaintiff occurred after the Plaintiff's CEO, Ali bin Mustafa, had emailed on 30.6.2021 to inform the 1st Defendant that he had personally verified the delivery with Hualang. This direct verification from the actual recipient, a fact which the Plaintiff did not rebut with evidence, demonstrates that the Plaintiff did not rely on the 1st Defendant's representation regarding delivery but instead relied on its own due diligence and communication with Hualang. The 1st Defendant submitted that this was fatal to the Plaintiff's claim as reliance is an essential element that must be established in any claim for misrepresentation. Furthermore, the 1st Defendant submitted that the evidence established that the Plaintiff had already planned to enter the financing arrangement with the 2nd Defendant well before any alleged representations were made. [224] The 2nd Defendant submitted that it was an innocent party serving merely as the financier, and that it had thoroughly checked all proper documentation before disbursement, including confirmation by the Plaintiff's CEO that delivery had S/N 02hWGNrqt0aco8Lbp3PFqQ been completed. The 2nd Defendant emphasised that all issues raised by the Plaintiff against it pertained solely to the consideration for the HPA, which required matters of delivery to be ascertained between the Plaintiff and the 1st Defendant, not the 2nd Defendant. The 2nd Defendant, as financier, had no direct involvement in the underlying transaction regarding delivery of Hardware and had no contractual relationship with Hualang or Shinryu. The 2nd Defendant submitted that in order for the hire purchase to be confirmed, signed and the money subsequently disbursed, the 2nd Defendant had to be satisfied with the documentation provided by the Plaintiff, and DW3 testified that she was indeed satisfied by the documentation supplied by the Plaintiff. The 2nd Defendant also submitted that the hire purchase agreement was entered into with the belief that the economizer was delivered, as confirmed by DW3 during cross-examination by the Plaintiff's counsel. [225] Having considered the evidence and submissions from all parties, I find that the Plaintiff has failed to establish that it entered into the HPA with the 2nd Defendant in reliance on any representations from the 1st Defendant. The contemporaneous documentary evidence is particularly instructive on this issue. The email dated 30.6.2021 at 7:40 p.m. from Ali bin Mustafa, the Plaintiff's CEO, to Shamsul Fadhli bin Anuari (PW3) and copied to the 1st Defendant's representatives, clearly stated: “Please proceed with the acceptance. I duly aware of the situation and I did my due S/N 02hWGNrqt0aco8Lbp3PFqQ verifications on the followings: 1. All documents are satisfactorily in order. 2. Further clarifications being done personally with NEC as our supplier and Hualang as our customer on current site condition and related documentations. 3. Uncertainties of MCO and impact on delaying the overall project is quite worrying.” This contemporaneous email demonstrates unequivocally that the Plaintiff's CEO had conducted his own independent verification, including direct communication with both the 1st Defendant and, critically, with Hualang as the Plaintiff's customer, before proceeding with acceptance of the delivery. [226] The significance of Ali bin Mustafa's email cannot be overstated. PW3 admitted during cross-examination that Ali bin Mustafa had verified with Hualang directly regarding the delivery. When counsel for the 1st Defendant put to PW3 that Ali bin Mustafa had verified with the customer directly of the delivery, PW3 initially hesitated but ultimately agreed based on the email: “From the email, agree.” PW3 further confirmed that he himself had not personally verified with Hualang, stating “Yes, correct” when asked this question. This admission is fatal to the Plaintiff's case on reliance. It demonstrates that the decision to accept delivery and proceed with the HPA was not made in blind reliance on the 1st Defendant's representations but rather on the basis of the Plaintiff CEO's own verification processes. The email also reveals that Ali bin Mustafa was “duly aware of the situation” regarding the Movement Control Orders and uncertainties S/N 02hWGNrqt0aco8Lbp3PFqQ surrounding the pandemic, yet nonetheless authorised acceptance after conducting his due verifications. The Plaintiff subsequently acted upon this verification by signing the delivery note on 30.6.2021 and issuing completion documents in July 2021, all of which were consistent with acceptance of delivery based on independent verification rather than mere reliance on representations from the 1st Defendant. [227] The evidence further establishes that negotiations between the Plaintiff and the 2nd Defendant regarding the hire purchase financing commenced as early as February 2021, well before any of the alleged representations that form the basis of the Plaintiff's claim. DW3, Ms Yeo Heng Kooi, who was the Head of Sales of the 2nd Defendant and assisted the Plaintiff in processing the HPA, testified that discussions or negotiations in respect of the hire purchase agreement between the Plaintiff and the 2nd Defendant started “somewhere in February 2021”. The witness stated in her witness statement that in order for the 2nd Defendant to finance the Plaintiff for the Economiser Equipments supplied by the 1st Defendant, the 2nd Defendant had discussions with the Plaintiff on the financing terms and conditions as well as to gather information about the Plaintiff for processing and recommendation for approval. This timeline is significant as it demonstrates that the financing arrangements were initiated and under active discussion long before the events of June-S/N 02hWGNrqt0aco8Lbp3PFqQ July 2021 when the alleged representations regarding delivery were made. [228] The 2nd Defendant gave its first approval for the hire purchase financing on 18.3.2021, as confirmed by DW3 during cross-examination. The witness testified that prior to 18.3.2021, there were already application discussions and commercial terms being discussed between the parties. The initial approval was subject to the condition that a corporate guarantee be obtained from the Plaintiff's parent company, FGV Holdings Berhad. However, the Plaintiff indicated that it could not provide the corporate guarantee, which led to another round of negotiations. DW3 testified: “Um, the first approval, there was a condition that we needed a corporate guarantee. But the Plaintiff says that they can't give the corporate guarantee. So we went into another round of negotiations. And they changed the collateral.” It was at the Plaintiff's own request that the collateral was changed from a corporate guarantee to a bank guarantee. This renegotiation process occurred between March 2021 and the eventual signing of the HPA in September 2021. These facts demonstrate that the financing arrangements were actively being negotiated by the Plaintiff independently with the 2nd Defendant, and the eventual terms of the HPA resulted from the Plaintiff's own commercial decisions and negotiations rather than any reliance on representations from the 1st Defendant regarding delivery. S/N 02hWGNrqt0aco8Lbp3PFqQ [229] DW3 further testified during cross-examination that on the Plaintiff's side, there was a team of people negotiating directly with the 2nd Defendant. When asked who from the Plaintiff was negotiating the terms, DW3 responded: “We spoke to a guy named Aiman, together with his financing team.” This testimony establishes that the Plaintiff had a dedicated financing team, led by an individual identified as Aiman, who was actively engaged in direct negotiations with the 2nd Defendant regarding the commercial terms of the hire purchase arrangement. The existence of this financing team and their active involvement in negotiations further undermines the Plaintiff's contention that it entered into the HPA in reliance on representations from the 1st Defendant. The evidence shows instead that the Plaintiff's financing team was independently assessing the commercial viability of the hire purchase arrangement and negotiating its terms with the 2nd Defendant throughout the period from February 2021 onwards. The fact that these negotiations were ongoing well before the June-July 2021 period when delivery documentation was being processed demonstrates that the decision to enter into the HPA was not causally linked to any representations about delivery made by the 1st Defendant at that later time. [230] The Plaintiff's case on reliance is further undermined by its failure to call Ali bin Mustafa as a witness, despite having listed him on the Plaintiff's witness list. Ali bin Mustafa was the Plaintiff's CEO and a director of the company who signed S/N 02hWGNrqt0aco8Lbp3PFqQ the Certificate of Completion on 6.7.2021, who sent the crucial email on 30.6.2021 confirming his own verifications, and who signed the HPA on 1.9.2021 on behalf of the Plaintiff. He was thus the most material witness on the question of what the Plaintiff relied upon when entering into the HPA with the 2nd Defendant. PW3 testified that Ali bin Mustafa had been suspended and subsequently terminated from his position in 2021 or 2022 following the discovery of issues related to this case. The willful withholding of such a material witness entitles the court to draw an adverse inference under section 114(g) of the Evidence Act 1950. As established by the Federal Court in Mohammad Azanul Haqimi bin Tuan Ahmad Azahari v Timbalan Menteri Dalam Negeri, Malaysia & Ors, the withholding of available and material evidence entitles the court to presume that such evidence would have been unfavourable to the withholding party. In the present case, the inference to be drawn is that had Ali bin Mustafa been called to testify, his evidence would not have supported the Plaintiff's contention that it relied on the 1st Defendant's representations when entering the HPA, but would instead have confirmed that the Plaintiff acted on the basis of its own independent verification and assessment. [231] In conclusion, the totality of the evidence demonstrates that the Plaintiff did not enter into the HPA with the 2nd Defendant in reliance on any representations from the 1st Defendant. The Plaintiff's CEO conducted his own verification with Hualang before authorising acceptance of delivery, as S/N 02hWGNrqt0aco8Lbp3PFqQ evidenced by the contemporaneous email dated 30.6.2021. The negotiations between the Plaintiff and the 2nd Defendant commenced in February 2021 with first approval given on 18.3.2021, well before any alleged representations about delivery. The Plaintiff's dedicated financing team, led by Aiman, was actively and independently negotiating the terms of the hire purchase arrangement with the 2nd Defendant throughout this period. The eventual change from corporate guarantee to bank guarantee as collateral occurred at the Plaintiff's own request following renegotiation of terms. The Plaintiff's failure to call Ali bin Mustafa, the most material witness on this issue, warrants an adverse inference that his evidence would not have supported the claim of reliance. For all these reasons, the Plaintiff has failed to discharge its burden of proving that it entered into the HPA in reliance on representations from the 1st Defendant. This finding is fatal to the Plaintiff's claims against the 2nd Defendant, which are premised entirely on such alleged reliance. Issues 11 and 12: Voidability and Want of Consideration [232] In light of my findings that the representations made by the 1st Defendant concerning delivery of the Hardware were not false and that the Plaintiff did not rely on such representations in entering into the HPA with the 2nd Defendant, Issues 11 and 12 do not strictly arise for determination. The Plaintiff's claim that the HPA should be declared void under section 19(1) of the Contracts Act 1950 S/N 02hWGNrqt0aco8Lbp3PFqQ is premised entirely upon the existence of actionable misrepresentation and reliance thereon. Having found against the Plaintiff on both these fundamental elements, the consequential issues of voidability and want of consideration are rendered moot. Nevertheless, I address these issues for completeness, as they were extensively argued by the parties and form part of the relief sought by the Plaintiff. [233] The Plaintiff relied upon section 19(1) of the Contracts Act 1950, which provides: “when consent to an agreement is caused by coercion, fraud, or misrepresentation, the agreement is a contract voidable at the option of the party whose consent was so caused.” The Plaintiff contended that its consent to enter the HPA with the 2nd Defendant was caused by the 1st Defendant's misrepresentation regarding delivery of the Hardware to the Maju Intan Plant, and that it had elected to void the HPA. The Plaintiff submitted that the HPA is void for want of consideration since it paid the 2nd Defendant “for nothing” when the Hardware was allegedly not delivered to the designated location. However, given my findings that no false representations were made by the 1st Defendant, that the representations made were not made negligently or recklessly, and crucially that no reliance was established on any alleged representations in the Plaintiff's decision to enter the HPA, this argument based on section 19(1) must necessarily fail. The essential precondition for the operation of section 19(1), that consent was caused by misrepresentation, has not been established. The evidence S/N 02hWGNrqt0aco8Lbp3PFqQ demonstrates that the Plaintiff's Chief Executive Officer, Encik Ali bin Mustafa, conducted his own independent verification before confirming acceptance on 30.6.2021, and that negotiations for the financing arrangement with the 2nd Defendant had commenced as early as February 2021, well before any alleged representations about delivery. [234] Regarding the Plaintiff's alternative submission on want of consideration, I find that valid consideration existed for the HPA in the form of financing services provided by the 2nd Defendant. The applicable legal principles on burden of proof are well-established. In Sinnaiyah & Sons Sdn Bhd v Damai Setia Sdn Bhd [2015] 7 CLJ 584, the Federal Court held at paragraph [5]: “Briefly the former relates to the burden or obligation of proving a fact on the party who exerts the existence of any fact in issue and wished the court to believe in its existence-ss.102 and 103 of the Evidence Act 1950 [“the Act”]. The burden of proof of a party never shifts.” [235] This principle was reinforced in Tenaga Nasional Bhd v Perwaja Steel Sdn Bhd [1995] 4 CLJ 670 (High Court), where Low Hop Bing J held at page 672: “Under s. 101(1) of the Evidence Act 1950, whoever desires the Court to give judgment as to any legal right or liability, dependent on the existence of facts which he asserts, must prove that those facts exists. In other words, the Plaintiff must prove such facts as the Plaintiff desires the Court to give Judgment as to its right to claim against the Defendant or the Defendant's liability to pay. The burden of proof is on the Plaintiff; S/N 02hWGNrqt0aco8Lbp3PFqQ s.101(2). In order to succeed here, the Plaintiff must prove its claim affirmatively.” [236] The Plaintiff, which asserts want of consideration, bears the burden of proving this allegation. The Plaintiff has manifestly failed to discharge this burden. The evidence establishes that the 2nd Defendant provided valuable consideration in the form of financing services, which consideration was received and utilised by the Plaintiff under the HPA dated 1.9.2021. [237] The 2nd Defendant fulfilled its contractual obligations by disbursing the financing based on proper documentation and verification procedures that were thoroughly implemented. The 2nd Defendant's evidence, which I accept, demonstrates that it conducted comprehensive checks of all documentation received from the Plaintiff before releasing the financing. This documentation contained an unequivocal confirmation from the Plaintiff’s own CEO, Encik Ali bin Mustafa, who, in his email dated 30.6.2021, expressly acknowledged that he was fully aware of the situation, had personally carried out the necessary verifications, was satisfied that all documents were in order, and had himself sought and obtained further clarification from the 1st Defendant as the supplier and Hualang as the customer regarding the site conditions and related documentation. S/N 02hWGNrqt0aco8Lbp3PFqQ [238] Having received this express confirmation from the Plaintiff's highest executive officer, together with the Certificate of Acceptance and other supporting documentation, the 2nd Defendant was obligated to release the financing in accordance with the terms of the HPA. The fact that disputes subsequently arose between the Plaintiff and other parties regarding the precise location of delivery or the condition of the Hardware does not retrospectively negate the valid consideration provided by the 2nd Defendant at the time of contract formation on 1.9.2021. [239] The 2nd Defendant performed its role as financier in accordance with established commercial practice and its contractual obligations. The HPA remains a valid and binding contract between the parties, enforceable according to its terms in accordance with the principle of sanctity of contract. Conclusion [240] For the foregoing reasons, the Plaintiff's claim against the 2nd Defendant is hereby dismissed in its entirety with costs. The Plaintiff has failed to establish on a balance of probabilities any of the essential elements necessary to succeed in its claim. The sanctity of the validly executed HPA dated 1.9.2021 must be preserved. S/N 02hWGNrqt0aco8Lbp3PFqQ 2ND DEFENDANT'S COUNTERCLAIM AGAINST PLAINTIFF The 2nd Defendant's Case [241] The 2nd Defendant's counterclaim was grounded on Clause 27 ('Costs and Expenses') of the HPA, which provided that the Plaintiff shall fully indemnify the 2nd Defendant for costs and expenses incurred in enforcing the terms of the Agreement. The 2nd Defendant pleaded that as a result of the Plaintiff's action against it, it had incurred legal costs and expenses recoverable under this indemnity clause. Additionally, the 2nd Defendant claimed that the Plaintiff had refused or failed to pay monthly instalments from 7.10.2022 onwards (for October 2022 through March 2023), despite being sent a reminder notice in December 2022 warning that the bank guarantee would be called if payments continued to be withheld. Consequently, the 2nd Defendant sought: a) payment of legal costs; b) late payment interest at 18% totalling RM18,425.74 calculated from 7.10.2022 to 16.3.2023 under Clauses 17 and 20 of the HPA; c) payment of the balance amount (shortfall) of RM5,843.64 remaining under the HPA after the bank guarantee was called; and (d) general damages to be assessed. S/N 02hWGNrqt0aco8Lbp3PFqQ The Plaintiff's Case [242] The Plaintiff’s primary defence to the counterclaim was that the 2nd Defendant had no right to base any claim or counterclaim on the HPA dated 1.9.2021, on the footing that the HPA was invalid and void, having been procured through the 1st Defendant’s alleged fraudulent or negligent misrepresentation regarding delivery of the Hardware. [243] In the alternative, and without admitting the validity of the HPA, the Plaintiff challenged the counterclaim on several grounds. While admitting that Clause 27 of the HPA provides for an indemnity in respect of costs and expenses, the Plaintiff made no admission as to the quantum of legal costs allegedly incurred, and placed the 2nd Defendant under a strict burden of proof to substantiate those amounts with proper evidence. [244] The Plaintiff further denied that any balance remained owing after the bank guarantee was called, asserting that the 2nd Defendant had already received the full amount allegedly owed by calling on the bank guarantee in the sum of RM5,655,262.10. On this basis, the Plaintiff put the 2nd Defendant to strict proof of any alleged shortfall, including how such shortfall was calculated. S/N 02hWGNrqt0aco8Lbp3PFqQ [245] The Plaintiff also challenged the late payment interest claimed, arguing that the 2nd Defendant had failed to prove the basis of the interest computation or that such interest was properly chargeable in the circumstances. [246] Finally, in respect of general damages, the Plaintiff submitted that the 2nd Defendant had failed to plead sufficient particulars of any loss allegedly suffered or to establish any legal basis for such a claim. Court's Analysis and Findings [247] The 2nd Defendant bears the burden of proving its counterclaim on a balance of probabilities. As established by the Federal Court in Sinnaiyah & Sons Sdn Bhd v Damai Setia Sdn Bhd, the burden of proof of a party never shifts, and the party asserting a claim must prove the existence of facts upon which the claim is based. [248] In respect of the counterclaim for legal costs and general damages, the 2nd Defendant has failed to discharge this burden. No evidence whatsoever was adduced to establish the quantum of legal costs allegedly incurred in defending the Plaintiff's action. [249] The sole witness called by the 2nd Defendant, DW3 (Ms Yeo Heng Kooi), who testified as the Head of Sales of the 2nd Defendant, did not provide any testimony regarding the S/N 02hWGNrqt0aco8Lbp3PFqQ nature, extent or computation of the legal expenses allegedly incurred. More critically, DW3 did not tender any documentary evidence such as solicitors' invoices, fee statements, billing records, or any other documentation to substantiate the claimed legal costs. [250] Similarly, no evidence of any kind was presented regarding the existence, nature or quantum of general damages allegedly arising from these proceedings. [251] The Plaintiff, in its Reply and Defence to Counterclaim, specifically placed the 2nd Defendant on strict proof as to quantum, making clear that while the existence of Clause 27 of the HPA was admitted, no admission was made regarding the quantum of legal costs allegedly incurred. [252] Accordingly, the counterclaim lacks the evidential foundation necessary to support the relief sought. [253] Upon examination of the 2nd Defendant's written submissions and the evidence adduced at trial, it becomes apparent that the 2nd Defendant's efforts were almost entirely directed towards defending against the Plaintiff's claim rather than towards establishing the merits of its own counterclaim. [254] The 2nd Defendant's submissions focused comprehensively on challenging the validity of the Plaintiff's allegations concerning fraudulent or negligent misrepresentation, arguing S/N 02hWGNrqt0aco8Lbp3PFqQ that the HPA was valid and binding, and that the Plaintiff had entered into the HPA independently without reliance on any representations from the 1st Defendant. [255] Whilst these defensive arguments were extensively developed, the 2nd Defendant advanced no substantive argument whatsoever regarding the legal basis for recovery under its counterclaim, nor did it address the quantum of damages claimed. [256] The counterclaim, as pleaded, sought relief under Clause 27 (“Costs and Expenses”) of the HPA dated 1.9.2021, which provided that “the Plaintiff shall fully indemnify the 2nd Defendant for costs and expenses incurred in enforcing the terms of the Agreement”. However, no analysis was offered as to how legal costs incurred in defending civil proceedings constitute costs incurred “in enforcing the terms of the Agreement”. [257] The counterclaim also sought general damages to be assessed, but again without any evidential or legal foundation being laid for such a claim. [258] More fundamentally, the 2nd Defendant has not established any recognised legal basis upon which legal costs incurred in defending civil proceedings may be recovered as substantive damages from an opposing party. S/N 02hWGNrqt0aco8Lbp3PFqQ [259] The Plaintiff, in paragraph 10 of its Reply and Defence to Counterclaim, expressly contended that the counterclaim disclosed no reasonable cause of action for recovering legal costs incurred in defending civil proceedings as substantive damages rather than through the ordinary costs regime, and reserved the right to strike out the counterclaim under Order 18 Rule 19(1)(a) of the Rules of Court 2012 on the ground that it disclosed no reasonable cause of action. [260] This fundamental challenge to the juridical basis of the counterclaim was never answered by the 2nd Defendant. The ordinary rule in civil litigation is that costs follow the event and are awarded by the court pursuant to its inherent jurisdiction and the Rules of Court 2012, not as a head of substantive damages. [261] The 2nd Defendant has pleaded no cause of action in tort, contract or statute that would support the recovery of its legal expenses as damages. Having characterised itself throughout the proceedings as a financier with limited involvement in the underlying transaction concerning the supply and delivery of hardware, and having taken the position that it merely acted on proper documentation provided by the Plaintiff's own CEO in entering into the HPA, the 2nd Defendant has not demonstrated how it suffered actionable loss or damage for which legal costs may be recovered as substantive damages rather than being addressed through the ordinary taxation of costs regime. S/N 02hWGNrqt0aco8Lbp3PFqQ [262] For the foregoing reasons, the 2nd Defendant's counterclaim is dismissed with costs. The 2nd Defendant has failed to adduce any evidence to prove the quantum of legal costs allegedly incurred or the existence and quantum of general damages claimed. No substantive legal argument was advanced to establish a juridical basis for the recovery of defensive legal costs as damages. The counterclaim is accordingly unsustainable both on the evidence and on the law. THE 1ST DEFENDANT'S THIRD PARTY CLAIM Issues [263] The following issues were submitted by the parties relating to the 1st Defendant’s claim against the Third Party: a) Issue 1: Whether the Third Party had in fact delivered the Hardware to Maju Intan Plant according to Shinryu's DO; b) Issue 2: Whether the Third Party had in fact procured the signature of the representative of Hualang which appeared on Shinryu's DO; c) Issue 3: If this court finds that the Hardware was not delivered to Maju Intan Plant by the Third Party, whether or not the Third Party shall be liable to return S/N 02hWGNrqt0aco8Lbp3PFqQ the sum of RM8,800,000.00 paid by the 1st Defendant to the Plaintiff and/or to indemnify the 1st Defendant and/or to contribute to the Plaintiff’s claim against the 1st Defendant in the event that the Plaintiff’s claim should allowed. The 1st Defendant's Case Against Shinryu [264] The 1st Defendant's Case is stated as below. [265] The 1st Defendant appointed Shinryu as the delivery partner for the first phase of the Project concerning the design and supply of the complete fuel handling system, Economizer Section Modules, Economizer Tower and Casing to boilers at the Maju Intan Plant. [266] On 17.3.2021, Shinryu issued a quotation to the 1st Defendant in the sum of RM8,800,000.00 for the design and supply of the Hardware to the Maju Intan Plant located at Lot 21570, Kampung Selabak, 36000 Teluk Intan, Perak. [267] On 15.4.2021, Shinryu issued the Shinryu DO to the 1st Defendant confirming delivery of the Hardware to the Maju Intan Plant with a delivery date of 14.4.2021. The Shinryu DO bore the signature of Dato' JP Tan, Group President of Hualang, and was stamped with Hualang's company stamp, purportedly confirming that the Hardware had been received in good condition. S/N 02hWGNrqt0aco8Lbp3PFqQ [268] Based on Shinryu's delivery documentation and representation, the 1st Defendant acted in reliance and informed the Plaintiff that delivery had been made. The 1st Defendant then proceeded to pay Shinryu the entire sum of RM8,800,000.00 in three tranches: RM3,000,000.00 on 3.9.2021, RM3,000,000.00 on 10.9.2021, and RM2,800,000.00 on 15.9.2021. [269] Subsequently, on 20.3.2023, the Plaintiff commenced proceedings against the Defendants by Writ and Statement of Claim, alleging that the Hardware was not delivered to the Maju Intan Plant. [270] On 3.1.2024, the 1st Defendant filed a Statement of Claim against Shinryu as a third party, seeking contribution or indemnity in the event that the 1st Defendant is found liable to the Plaintiff. [271] The 1st Defendant's position was that Shinryu was the party responsible to deliver the Hardware and had received full payment for the same. The 1st Defendant advanced two principal grounds for relief against Shinryu. [272] First, if the court finds that delivery was not made contrary to Shinryu's position, Shinryu would be in breach of its fundamental contractual obligation to deliver the Hardware and unjustly enriched by receiving payment for services it did not perform. Under such circumstances, an order for the S/N 02hWGNrqt0aco8Lbp3PFqQ return of the sum of RM8,800,000.00 should be made against Shinryu. [273] Second, if the court finds the 1st Defendant liable to the Plaintiff for the alleged non-delivery, the 1st Defendant is entitled to seek full indemnity from Shinryu for any award of damages and costs payable to the Plaintiff. The 1st Defendant's position was that it had no operational role in the logistics or delivery of the Hardware and merely relayed to the Plaintiff what it was led to believe was accurate information, based on Shinryu's representation and delivery documentation which appeared regular on its face. As such, the 1st Defendant was not the root cause of any delivery failure, nor did it make any false statement with knowledge or intent. Its liability, if any, was entirely derivative of Shinryu's breach. [274] The 1st Defendant contended that in respect of the delivery of the Hardware, it had acted throughout as an intermediary in good faith. The entire cause of the 1st Defendant's liability to the Plaintiff, if established, stemmed from Shinryu's breach of its delivery obligation and its provision of misleading documentation. [275] The 1st Defendant prayed for reliefs premised on the contingency that this court gives judgment against the 1st Defendant in favour of the Plaintiff. S/N 02hWGNrqt0aco8Lbp3PFqQ [276] The primary relief sought was an order that Shinryu contribute fully or indemnify the 1st Defendant fully, or to such extent as this court deems just and equitable, against any amounts awarded in the Plaintiff's claim. [277] In the alternative, the 1st Defendant sought an order that Shinryu return the sum of RM8,800,000.00 which the 1st Defendant had paid to Shinryu. [278] The 1st Defendant further sought an order that Shinryu pay the costs of the action and any costs for proceedings relevant to the action, including the costs of the third party proceedings, together with such other reliefs as this court deems fit and proper. Shinryu's case [279] Shinryu's case in the 1st Defendant's Third Party claim is stated as below. [280] Shinryu maintained that it had fully complied with all requirements of the Shinryu DO and duly performed its contractual obligations by delivering the Hardware to the Maju Intan Plant as stipulated. [281] Shinryu's primary position was that at all times, the 1st Defendant had full knowledge of the delivery and never disputed, protested, or complained to Shinryu in respect of S/N 02hWGNrqt0aco8Lbp3PFqQ the Shinryu DO. This position was reinforced by the fact that the 1st Defendant paid the entire sum of RM8,800,000.00 to Shinryu. [282] Furthermore, Shinryu asserted that it was appointed by the 1st Defendant without any involvement from the Plaintiff, and there was no contractual relationship between the Plaintiff and Shinryu. The subject matter of the civil suit concerned material disputes of facts concerning the supply and delivery of the Hardware, and this action was confined to matters arising from the appointment of the 1st Defendant and Shinryu. [283] Shinryu raised the principles of estoppel, laches, and acquiescence as bars to the 1st Defendant's claims. Shinryu contended that the 1st Defendant was not a passive financier but played an active role in coordinating delivery with Shinryu. If the 1st Defendant had any doubts, it could have arranged for site confirmation or withheld payment, but it chose not to do so. The 1st Defendant's own internal documents showed acceptance of the delivery. [284] On the issue of delay and inaction, Shinryu submitted that for nearly two years, the 1st Defendant took no steps to question the delivery. In fact, the 1st Defendant acted consistently with an understanding that the transaction was complete. Such prolonged silence and inaction amounted to acquiescence, S/N 02hWGNrqt0aco8Lbp3PFqQ especially when the party had every opportunity to verify its position. [285] Shinryu further contended that the 1st Defendant's reliance on indemnity and unjust enrichment principles was misplaced. These remedies require proof of breach or failure of consideration, but the delivery was made and the 1st Defendant paid voluntarily based on documentation it accepted. Shinryu had delivered the goods as instructed, provided all documentation, and was paid after the 1st Defendant conducted its own verification. There was no concealment, no misrepresentation, and no fiduciary or contractual duty owed by Shinryu to the 1st Defendant beyond completing the delivery. [286] Shinryu's role was purely logistical as delivery was made, received, and acknowledged at the site. If the goods were later removed or went missing, such loss arose from events beyond Shinryu's control. Absent a clear breach or fraud, indemnity could not be sustained. The facts demonstrated confirmed delivery, clean documentation, and delayed protest, which did not support a restitutionary claim. [287] Shinryu's position was that the 1st Defendant's third party claim was fundamentally misconceived. The 1st Defendant accepted delivery documentation from Shinryu without protest, verified and forwarded the same to the Plaintiff and the 2nd Defendant, and the 1st Defendant's attempt to now S/N 02hWGNrqt0aco8Lbp3PFqQ place liability on Shinryu contradicted its earlier acknowledgements regarding the completion of delivery and payment. Court's Analysis and Findings [288] Shinryu, as defendant in the third party action, maintained a comprehensive defence against the 1st Defendant's claims. Shinryu asserted that it had duly performed its contractual obligations by delivering the Hardware to the Maju Intan Plant as stipulated in the Shinryu DO dated 15.4.2021. Shinryu's position, as pleaded in its Third Party Defence dated 19.1.2024, was unequivocal: “Pihak Ketiga telah memenuhi kesemua peruntukan Shinryu DO.” This assertion was supported by TPW1, Muhamad Zaidi bin Abdullah, who provided direct testimony that the equipment was physically delivered to Hualang's site at Maju Intan, that the Shinryu DO was signed by Dato' JP Tan in his presence, and that photographic evidence was obtained. Shinryu maintained throughout that there was no concealment, misrepresentation, or breach of any fiduciary or contractual duty on its part. [289] Shinryu further contended that the 1st Defendant's conduct demonstrated full knowledge and acceptance of the delivery. Shinryu emphasised that at all times, “the Defendant has full knowledge of the above and has never disputed, protested and/or complained to a Third-Party in respect of Shinryu DO.” S/N 02hWGNrqt0aco8Lbp3PFqQ This position was reinforced by the undisputed fact that the 1st Defendant paid the entire sum of RM8,800,000.00 to Shinryu, which payment was made only after the 1st Defendant conducted its own verification processes. The evidence demonstrated that the 1st Defendant received Shinryu's delivery documentation in April 2021, generated its own delivery order on 28.6.2021, and proceeded to make payment to Shinryu in tranches between 3.9.2021 and 10.9.2021. Shinryu submitted that this pattern of conduct, namely verification, documentation, and payment, was wholly inconsistent with any allegation that the 1st Defendant had been misled or that delivery had not occurred as represented. [290] On the critical issue of delay and acquiescence, Shinryu raised substantial defences based on the 1st Defendant's prolonged silence and inaction. The evidence established an incontrovertible timeline: delivery was made on 14.4.2021, the 1st Defendant verified and accepted delivery by 28.6.2021, payment was made in full by September 2021, yet the first complaint of non-delivery did not emerge until December 2022 when the Plaintiff suspended payments to the 2nd Defendant. The police report which triggered the allegations was not lodged until 20.3.2023. This represented a period of nearly two years during which the 1st Defendant took no steps whatsoever to question the delivery, notwithstanding that it had every opportunity to arrange site confirmation or withhold payment had it harboured any doubts. Shinryu invoked the principles of estoppel, laches, S/N 02hWGNrqt0aco8Lbp3PFqQ and acquiescence as complete bars to the 1st Defendant's belated claims. As the Court of Appeal held in Sri Datai Engineering Sdn Bhd v Daiho Corp, prolonged silence where a party has every opportunity to verify its position amounts to acquiescence and precludes subsequent challenge. [291] The characterisation of the third party action as requiring dismissal flows from the fundamental principle that third party proceedings are contingent in nature and derive their relevance from the success of the main claim. As the High Court explained in Syarikat Duasama Sdn Bhd v Abdul Aziz bin Ibrahim (t/a Radiant Star Enterprise) (Tiong Sing Trading Co Sdn Bhd & Anor, third parties) [2018] MLJU 5 at paragraph 49, a third party may be ordered to indemnify or make contribution in respect of the defendant's liability in three circumstances: [292] In Malayan Banking Bhd v Sepakat Computer Consultant Sdn Bhd & Ors (Intercontinental Nominees Sdn Bhd & Anor, third party) [2012] 8 MLJ 660 the High Court held that where the relationship between parties or the surrounding circumstances give rise in law or in equity to an obligation on one party to indemnify another, a right of indemnity may arise independently of any express or implied contract. S/N 02hWGNrqt0aco8Lbp3PFqQ [293] However, these remedies are premised upon the defendant having established liability to the plaintiff in the main action. [294] The contingent nature of third party proceedings means that where the main claim is dismissed on its merits, as opposed to dismissal on purely procedural or technical grounds, the question of indemnity, contribution, or restitution from the third party does not arise. This principle is fortified in the present case by Shinryu's substantial independent defences. The 1st Defendant's conduct over nearly two years, namely accepting delivery documentation without protest, verifying the delivery, forwarding confirmation to both the Plaintiff and the 2nd Defendant, paying Shinryu in full, and maintaining complete silence until allegations emerged in late 2022, gave rise to valid defences of acquiescence and estoppel. The principles articulated in Everbest Media Sdn Bhd v Law Wogt Media Sdn Bhd & Anor are directly applicable, in that prolonged conduct, non-action, or silence in pursuing a claim over many years amounts to acquiescence, and such inaction undermines the honesty of the claim where the matter could at any time have been raised and discussed with the other party. [295] Justice requires dismissal of the third party claim both on contingency grounds and on the merits of Shinryu's defences. S/N 02hWGNrqt0aco8Lbp3PFqQ [296] The 1st Defendant's reliance on principles of unjust enrichment and indemnity must also fail on their merits. The 1st Defendant submitted that if delivery was not made, Shinryu would be unjustly enriched and should return the RM8,800,000.00 paid, citing Panasonic Appliances Air-Conditioning (M) Sdn Bhd v Top Square Sdn Bhd & Ors (Shanmugam a/l Ramasamy & Ors, third parties) [2021] 8 MLJ 363 (High Court) at paragraph 71, wherein the High Court held that a third party is not entitled to retain windfall gain. [297] However, the present case is wholly distinguishable. Here, Shinryu consistently maintained that delivery was made and received, supported by contemporaneous documentation and direct testimony. The 1st Defendant paid voluntarily after conducting its own verification processes, as evidenced by DW1's testimony that the 1st Defendant's internal documents showed acceptance of delivery. There was no concealment, no misrepresentation, and no breach of duty by Shinryu. As the Court of Appeal emphasised in Sabarudin bin Othman & Anor v Malayan Banking Bhd [2018] MLJU 304 at paragraph 26, indemnity rights arise where a party relies on a third party's representation to its detriment but here, the evidence demonstrates that the 1st Defendant conducted its own verification rather than relying blindly on representations. S/N 02hWGNrqt0aco8Lbp3PFqQ [298] Given the court's definitive finding that the Plaintiff's claim against the 1st Defendant fails on its merits, and considering Shinryu's substantial defences including the 1st Defendant's acceptance of delivery, payment in full after verification, and prolonged silence of nearly two years before any challenge was raised, the question of indemnity, contribution, or restitution from Shinryu becomes entirely moot. The 1st Defendant seeks to recover from Shinryu amounts for which it bears no liability to the Plaintiff. As the High Court recognised in Benzteel Sdn Bhd v United Trade Arena (M) Sdn Bhd & Anor Appeal [2011] 1 LNS 1185 at paragraphs 11.4.12-11.4.13, indemnity is appropriate where the defendant's liability is derivative of the third party's breach, but this presupposes that the defendant has established liability in the first instance. No such liability has been established here. The principles of estoppel, laches, and acquiescence applicable against the 1st Defendant, combined with the dismissal of the main claim on its merits, compel the conclusion that the third party claim must be dismissed. Accordingly, the 1st Defendant's third party claim against Shinryu is dismissed with no order as to costs. ORDERS [299] Accordingly, I make the following orders: a) The Plaintiff's claims against the 1st Defendant and 2nd Defendant are hereby dismissed with costs. S/N 02hWGNrqt0aco8Lbp3PFqQ b) The 2nd Defendant's counterclaim against the Plaintiff is dismissed with costs. c) The 1st Defendant's third party claim against the Third Party is dismissed with no order as to costs. d) The Plaintiff shall pay costs in the sum of RM30,000.00 to the 1st Defendant, subject to allocatur. e) The Plaintiff shall pay costs in the sum of RM20,000.00 to the 2nd Defendant, subject to allocatur. f) The 2nd Defendant shall pay costs in the counterclaim in the sum of RM5,000.00 to the Plaintiff, subject to allocatur. 12 January 2026 ATAN MUSTAFFA YUSSOF AHMAD Judge Kuala Lumpur High Court (Commercial Division) S/N 02hWGNrqt0aco8Lbp3PFqQ Counsel: For the Plaintiff: Muhammad Firdaus bin Danial Tan (Messrs. Fahri, Azzat & Co.) For the First Defendant: Eddie Chuah with Nabilah Mohd Izhar (Messrs. Wong & Partners) For the Second Defendant: Lim Kim Jim (Messrs. Lim, Phua & Noraini) For the Third Party: Siet Yi Heng (Messrs. Au & Partners) S/N 02hWGNrqt0aco8Lbp3PFqQ

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Refers toCONTRACTS ACT 1950Legislation
“nd Defendant proceeds on three alternative bases. [206] First, the Plaintiff contends that because the Representation was false and untrue, the HPA should be declared void under section 19(1) of the Contracts Act 1950. The Plaintiff entered into the HPA believing that the Hardware had been delivered S/N 02hWGNrqt0aco8L”
Refers toEvidence ActExternal
“rate that the MIBE witnesses were not privy to the contractual arrangements and delivery instructions as between the Plaintiff, the Defendants, and Hualang. [104] As mandated by Section 60(1) of the Evidence Act 1950, oral evidence must in all cases be direct, meaning it must come from a witness who personally saw, hea”
Cites[1964] AC 465External
“gligently, the remedy of the representee lies in damages in the tort of negligence under the assumption of responsibility and reliance doctrine laid down in Hedley Byrne & Co Ltd v. Heller & Partners [1964] AC 465. In such a case the representee must plead and prove a special relationship giving rise to a duty of care”
Cites[2016] MLJU 866External
“ot have supported the Plaintiff's case and would have confirmed that delivery was properly made to Hualang at the Maju Intan Plant. [121] As established in Sri Datai Engineering Sdn Bhd v Daiho Corp [2016] MLJU 866 (Court of Appeal), a party who remains silent and allows other parties to act in reliance on its position”
Cites[2017] MLJU 1868External
“condition of mind, particulars of the facts on which the party relies must be contained in the pleading. [180] The High Court in Accolade Land Sdn Bhd v Mass Rapid Transit Corporation Sdn Bhd & Ors [2017] MLJU 1868 held that the Statement of Claim must show the nature and extent of each allegation, and that “the necess”

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Cites[2017] MLJU 7External
“d invoices were not questioned, the party acknowledging receipt of consignments would be deprived of merit in any defence of non-delivery. In Golden Clay Industries Sdn Bhd v Petronas Dagangan Berhad [2017] MLJU 7 (High Court), the court emphasised that by signing and stamping a delivery note stating that goods were re”
Cites[2018] MLJU 1179External
“ING portal 80 [184] To succeed in a claim for fraudulent misrepresentation, the Plaintiff must establish five essential elements as set out in Top Glove Corporation Bhd & Anor v Low Chin Guan & Ors [2018] MLJU 1179 by the High Court, namely: a) there must be a representation of fact made by words or conduct; b) the rep”
Cites[2018] MLJU 304External
“showed acceptance of delivery. There was no concealment, no misrepresentation, and no breach of duty by Shinryu. As the Court of Appeal emphasised in Sabarudin bin Othman & Anor v Malayan Banking Bhd [2018] MLJU 304 at paragraph 26, indemnity rights arise where a party relies on a third party's representation to its de”
Cites[2018] MLJU 5External
“rom the success of the main claim. As the High Court explained in Syarikat Duasama Sdn Bhd v Abdul Aziz bin Ibrahim (t/a Radiant Star Enterprise) (Tiong Sing Trading Co Sdn Bhd & Anor, third parties) [2018] MLJU 5 at paragraph 49, a third party may be ordered to indemnify or make contribution in respect of the defendan”
Cites[2020] MLJU 543External
“1st Defendant owed a duty of care because of the COVID-19 pandemic and Movement Control Orders then in place. However, as held in Bauer (Malaysia) Sdn Bhd v Hundred Vision Construction Sdn Bhd & Anor [2020] MLJU 543 by the High Court, “The Court would be slow to impose or identify a duty of care especially where the pa”
Cites[2022] MLJU 2673External
“lay from the date of delivery in April 2021 until the commencement of these proceedings amounts to acquiescence which bars the present claim. In Everbest Media Sdn Bhd v Law Wogt Media Sdn Bhd & Anor [2022] MLJU 2673, the High Court held that: “The conduct or non-action/silent of the Plaintiff in forwarding his claim a”
Cites[2023] MLJU 1477External
“e non-delivery to Hualang infringes this fundamental rule of evidence. [106] The testimonies of PW1 and PW2 amount to what was described in Medan Prestasi Sdn Bhd v Ketua Pengarah Hasil Dalam Negeri [2023] MLJU 1477 (High Court) it was decided that where contemporaneous documentary evidence remains authentic and uncont”
Cites[2024] MLJU 3491External
“en if the court were to permit the Plaintiff to advance its case on fraudulent misrepresentation, the claim must fail on the evidence. The High Court in ABS Solution (S) Pte Ltd v Lim Teck Hoe & Anor [2024] MLJU 3491 explained: “Fraudulent misrepresentation undoubtedly imposes a higher evidentiary burden, as it require”

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1 IN THE HIGH COURT OF MALAYA AT KUALA LUMPUR IN THE FEDERAL TERRITORIES (COMMERCIAL DIVISION) SUIT NO. WA-22NCC-139-03/2023 BETWEEN FGV PRODATA SYSTEMS SENDIRIAN BERHAD [COMPANY NO.: 199501024739 (353944-K)] ... Plaintiff

And

NEC CORPORATION OF MALAYSIA SENDIRIAN BERHAD [COMPANY NO.: 200001023469 (526077-M)]

NEC CAPITAL SOLUTIONS MALAYSIA SENDIRIAN BERHAD [COMPANY NO.: 201301045944 (1075768-V)] ...Defendants AND SHINRYU CO SDN BHD (Company No.: 200601001931 (721679-X) ...Third Party GROUNDS OF JUDGMENT INTRODUCTION [1] This matter concerns a claim by the Plaintiff, FGV Prodata Systems Sdn. Bhd., against the 1st Defendant, NEC Corporation of Malaysia Sdn. Bhd. and the 2nd Defendant S/N 02hWGNrqt0aco8Lbp3PFqQ NEC Capital Solutions Malaysia Sdn. Bhd. for fraudulent and/or negligent misrepresentation concerning the delivery of hardware under a project involving the supply, delivery, and installation of specialised industrial equipment for use at a biomass power generation facility. The 1st Defendant has filed a third party action against the Third Party, Shinryu Co Sdn. Bhd. (“Shinryu”). The 2nd Defendant also has a counterclaim against the Plaintiff seeking an indemnity for legal costs and expenses incurred, payment of overdue instalments together with late payment interest, and recovery of the outstanding shortfall sums due under the hire purchase agreement with the Plaintiff. BACKGROUND FACTS [2] The Plaintiff trades in the field of information technology solutions, sales of computer hardware, software and devices, and support system provider. [3] The 1st Defendant trades in the field of consultation services, software implementation service, telecommunication hardware and total system integration solutions, general trading and procurement. [4] The 2nd Defendant provides financial services including hire purchase facilities. S/N 02hWGNrqt0aco8Lbp3PFqQ [5] Shinryu is engaged in the trade of supplying, logistics, and delivery of industrial equipment, specifically acting as a vendor and delivery contractor for heavy or specialised plant hardware. [6] Hualang Renewable Energy Sdn. Bhd. (“Hualang”) is a company involved in the operation of biomass power generation facilities. [7] Maju Intan Biomass Energy Sdn. Bhd (“MIBE”) operates the Maju Intan Biomass Power Plant (“Maju Intan Plant”) at Lot 21570, Kampung Selabak, 36000 Teluk Intan, Perak. [8] Sometime in February 2021, Hualang approached the Plaintiff regarding a project (“the Project”) for the implementation of System Invariant Analysis Technology (SIAT) C/W Economizer Section Modules (“the Hardware”) for Hualang at the Maju Intan Plant. [9] On 22.3.2021, Hualang awarded the Project to the Plaintiff via a Letter of Award signed by Dato' Setia Joshua Peter Tan Pin Pin (“Dato' JP Tan”). [10] On 25.3.2021, the 1st Defendant issued three quotations with reference number NEC/ENT/LH/FGV/SIAT/02-21/QT023 to the attention of the Plaintiff's representative, Encik Ali bin Mustafa, the Plaintiff’s Chief Executive Officer (“CEO”). The quotations were as follows: S/N 02hWGNrqt0aco8Lbp3PFqQ a) A quotation dated 25.3.2021 for the provision of hardware sensor device in the sum of RM9,318,182.00 for Phase 1; b) A quotation dated 25.3.2021 for provision and installation of hardware and third-party software in the sum of RM250,391.30 for Phase 2; and c) A quotation dated 25.3.2021 for licences, maintenance, server and implementation services for SIAT System in the sum of RM2,223,868.06 for Phase 3. [11] The quotation for Phase 1 was for the provision of hardware sensor device comprising replacement of all three (3) Economizer Section Modules, Economizer Tower and Casing to boilers. [12] On 31.3.2021, the Plaintiff accepted the 1st Defendant's quotations and issued three Letters of Acceptance to the 1st Defendant. [13] On 6.4.2021, the Plaintiff issued three Purchase Orders to the 1st Defendant to confirm the material terms. Purchase Order No. 4300037239/2300020035 dated 6.4.2021 was for the replacement of all three Economizer Section Modules, Economizer Tower and Casing to boilers, specifying delivery S/N 02hWGNrqt0aco8Lbp3PFqQ to the Maju Intan Plant, 36000 Perak, with an expected delivery date of 9.4.2021. [14] The implementation of the SIAT System was to be divided into three phases, with Phase 1 being the supply of the sensor device. For the implementation of Phase 1, the Hardware including the Economizer Section Modules would be provided and delivered directly to Hualang at the Maju Intan Plant. [15] On 17.3.2021, Shinryu issued a quotation to the 1st Defendant in the sum of RM8,800,000.00 for the design and supply of the Hardware to the Maju Intan Plant located at Lot 21570, Kampung Selabak, 36000 Teluk Intan, Perak. [16] The 1st Defendant appointed Shinryu as the delivery partner for the first phase of the Project in respect of the design and supply of the Hardware. The 1st Defendant directed Shinryu to proceed with the delivery to the Maju Intan Plant. [17] On 15.4.2021, Shinryu issued a delivery order (“Shinryu DO”) to the 1st Defendant confirming delivery of the Hardware to the Maju Intan Plant with delivery date stated as 14.4.2021. The Shinryu DO was signed by Group President of Hualang, Dato' JP Tan, and stamped with the company stamp of Hualang, confirming that the Hardware had been received in good condition. S/N 02hWGNrqt0aco8Lbp3PFqQ [18] On 28.6.2021, the 1st Defendant issued a delivery note to the Plaintiff. On 30.6.2021, the Plaintiff signed the 1st Defendant's delivery note confirming that the sensor device had been received in good condition. [19] On 5.7.2021, the Plaintiff issued the following documents: a) A packing list dated 5.7.2021 which was signed off by Hualang; and b) A checklist for hardware and software implementation dated 5.7.2021 which was signed off by Hualang, certifying that the specified job, namely the replacement of the Economizer Section Modules, had been completed. [20] On 6.7.2021, the Plaintiff issued a certificate of completion confirming that all works under the 1st Defendant's quotation for Phase 1 had been completed to the Plaintiff's satisfaction on 14.4.2021. This certificate was endorsed by Hualang on 7.7.2021. [21] Earlier, sometime in or around March 2021, the Plaintiff requested a financing arrangement to make payments to the 1st Defendant so that the Plaintiff could ease its financial burden. S/N 02hWGNrqt0aco8Lbp3PFqQ [22] For the purpose of providing the Plaintiff with financing, the 1st Defendant introduced the 2nd Defendant into the parties' discussions. The 2nd Defendant approved financing to the Plaintiff prior to the issuance of the purchase orders for Phase 1, 2 and 3, subject to conditions including, inter alia, an irrevocable and unconditional corporate guarantee from the Plaintiff's holding company, FGV Holdings Berhad. [23] Sometime in or around June to July 2021, the Plaintiff and the 2nd Defendant agreed to a financing arrangement whereby: a) The Plaintiff was to provide a bank guarantee as collateral instead of the corporate guarantee; b) The 2nd Defendant would issue a letter of undertaking to make full payment to the 1st Defendant for the sensor device upon completion of delivery; c) The Plaintiff would then pay the 2nd Defendant in instalments by entering into a hire purchase agreement with the 2nd Defendant; and d) To effect the financing arrangement, the Plaintiff issued to the 2nd Defendant another purchase order no. 4300037508/2300020293. S/N 02hWGNrqt0aco8Lbp3PFqQ [24] On 25.8.2021, the Plaintiff cancelled its Purchase Order 4300037329/2300020035 to the 1st Defendant related to the three Economizer Section Modules. This purchase order was replaced with Purchase Order 4300037508/2300020293 to facilitate the financing arrangement with the 2nd Defendant. [25] On 1.9.2021, the Plaintiff entered into a hire purchase agreement (“HPA”) with the 2nd Defendant with reference number MYIS2100005 for the sum of RM10,158,824.00 payable in 36 monthly instalments of RM282,134.00. [26] The Plaintiff provided a bank guarantee issued by Maybank Islamic Berhad with reference number 99140BGR638700 as collateral for the hire purchase agreement. [27] In September 2021, the 1st Defendant released full payment to Shinryu for the provision and delivery of the sensor device. The 1st Defendant paid the entire sum of RM8,800,000.00 to Shinryu in the following tranches: a) RM3,000,000.00 on 3.9.2021; b) RM3,000,000.00 on 10.9.2021; and c) RM2,800,000.00 on 15.9.2021. S/N 02hWGNrqt0aco8Lbp3PFqQ [28] Sometime on 23.8.2022, the 1st Defendant received a letter from the Plaintiff's solicitors, Messrs. Fahri, Azzat & Co. In the letter, the Plaintiff’s solicitors alleged that the economizer hardware had not been delivered, asserted resulting loss, and demanded an explanation from the 1st Defendant. In response, on 30.8.2022, the 1st Defendant replied by letter to explain about the delivery which had been made to the Maju Intan Plant and to deny allegations raised by the Plaintiff. [29] By Writ and Statement of Claim both dated 20.3.2023 and Amended Statement of Claim dated 22.3.2023, the Plaintiff commenced the present proceedings against the Defendants, premised on the key allegation that the Hardware was not delivered to the Maju Intan Plant. [30] On 3.1.2024, the 1st Defendant filed a Statement of Claim against Shinryu as a third party, seeking contribution or indemnity in the event that the 1st Defendant is found liable to the Plaintiff. WITNESSES [31] Three witnesses appeared for the Plaintiff as follows: a) PW1 is Justin Ang Kheng Aun, a subpoenaed witness who testified that he only joined MIBE as Operations Director in April 2022, more than one year after the alleged delivery date of 14.4.2021. His evidence S/N 02hWGNrqt0aco8Lbp3PFqQ primarily relates to non-delivery of the Hardware to MIBE's premises. When cross-examined, PW1 confirmed: “You can confirm that you have no personal knowledge of the matters that happened in 2021?” to which he answered “Yes”. PW1 further admitted that he was only privy to documents in 2022, which was one year after the incident took place. Most significantly, both PW1 confirmed that MIBE had no contractual involvement in the Project and had never issued any purchase order for the Hardware. PW1 confirmed that the Shinryu DO was executed by Hualang and stated that he did not know Dato' JP Tan. b) PW2 is Harisal bin Talib, a subpoenaed witness who testified that he is the Operations Manager at MIBE as of August 2019. His evidence concerns non-receipt of the Hardware at MIBE's premises. He testified that he would normally be the person to confirm delivery orders. Although PW2 was employed at the time of the alleged delivery in April 2021, he admitted that he had no record of being at the Maju Intan Plant on 14.4.2021 and never personally saw or received the Hardware. PW2 testified that he knew Hualang but did not know the Plaintiff or any of the parties to these proceedings, nor their relationship. PW2 further confirmed that while the plant had CCTV, there were no CCTV recordings for the material date before the court. S/N 02hWGNrqt0aco8Lbp3PFqQ c) PW3 is Shamsul Fadhli bin Anuari, who testified that he is the Account Manager of the Plaintiff since March

2021

His evidence concerns his involvement in all correspondence and communications with the Defendants regarding the Project. At all material times, PW3 testified that he acted under the instructions of Encik Ali bin Mustafa, the Plaintiff's then-CEO, which includes the preparation of documents. “In respect of the execution of the 1st Defendant's Delivery Order, PW3 explained that he sought advice from one “En. Shamsudin” and Encik Ali. “PW3 confirmed that he relied on Encik Ali in respect of the execution of the 1st Defendant's Delivery Order. PW3 testified that he was aware that Hualang, and mostly Dato' JP Tan, was a customer to the Plaintiff. PW3 explained that the Plaintiff only discovered that the Hardware was missing in March 2022 when Hualang refused to pay the Plaintiff. [32] Two witnesses appeared for the 1st Defendant as follows: a) DW1 is Leong Kok Heng, who testified that he is the Head of Digital Solutions Department of the 1st Defendant. His evidence relates to the Project management and delivery arrangements. DW1 informed that issues concerning the Hardware arose when Hualang denied the delivery thereof. This was despite Dato' JP Tan denying anyone from conducting S/N 02hWGNrqt0aco8Lbp3PFqQ a site visit to the Maju Intan Plant. In fact, DW1 confirmed that the 1st Defendant was in contact with Dato' JP Tan since the kick-off of the Project. DW1 further confirmed that Hualang had control over the Maju Intan site. b) DW2 is Hoo Foong Yan or Leah Hoo, who testified that she was the Product Specialist of the 1st Defendant. Her evidence concerns the preparation of quotations and management of sales transactions between the 1st Defendant, Shinryu, and the Plaintiff. She testified that she was in charge of managing the sales of the 1st Defendant's and third parties' products to the 1st Defendant's customers, and that she started work in the 1st Defendant sometime in 2019 and left around February 2022. DW2 confirmed that she prepared the 1st Defendant's quotation to the Plaintiff for the sensor devices/economizer based on Shinryu's quotation. She testified regarding various communications between the parties during the Project. DW2 confirmed that the Plaintiff's then-CEO, Ali bin Mustafa, had made his own verification of the delivery by way of email dated 30.6.2021, wherein he confirmed that he had done his own verification with Hualang. S/N 02hWGNrqt0aco8Lbp3PFqQ [33] The one witness who appeared for the 2nd Defendant is DW3 Ms Yeo Heng Kooi, who was the Head of Sales of the 2nd Defendant and assisted the Plaintiff in processing the HPA dated 1.9.2021. Her evidence relates to the financing arrangements. DW3 testified that discussions or negotiations in respect of the hire purchase agreement between the Plaintiff and the 2nd Defendant started “somewhere in February 2021”. The witness stated in her witness statement that in order for the 2nd Defendant to finance the Plaintiff for the Economiser Equipments supplied by the 1st Defendant, the 2nd Defendant had discussions with the Plaintiff on the financing terms and conditions as well as to gather information about the Plaintiff for processing and recommendation for approval. The 2nd Defendant gave its first approval for the hire purchase financing on 18.3.2021, as confirmed by DW3 during cross-examination. The witness testified that prior to 18.3.2021, there were already application discussions and commercial terms being discussed between the parties. DW3 testified: “Um, the first approval, there was a condition that we needed a corporate guarantee. But the Plaintiff says that they can't give the corporate guarantee. So we went into another round of negotiations. And they changed the collateral.” It was at the Plaintiff's own request that the collateral was changed from a corporate guarantee to a bank guarantee. S/N 02hWGNrqt0aco8Lbp3PFqQ [34] TPW1 Muhamad Zaidi bin Abdullah was the sole witness for Shinryu who provided direct first-hand testimony about the loading, transportation, and delivery of the Hardware. When examined on the Shinryu DO, TPW1 confirmed: “Yang menerima DO ini adalah Dato JP Tan daripada Hualang” (The person who received this DO was Dato' JP Tan from Hualang). TPW1 further testified that he was directed to deliver to Hualang and that delivery was made to Hualang's representative as instructed. TPW1's evidence establishes that the delivery location was determined by and acceptable to the authorised recipient, Dato' JP Tan, who signed the Shinryu DO dated 15.4.2021 on behalf of Hualang with the company's official stamp. The Shinryu DO bears the notation “Received the above in good condition” with Dato' JP Tan's signature and Hualang's company stamp. TPW1's testimony actually supports the case for delivery having been completed, as he confirmed that the goods were delivered to the location specified by Hualang's representative and that all proper delivery documentation was executed. PLAINTIFF'S CLAIM AGAINST THE 1ST DEFENDANT The Plaintiff's Case [35] The Plaintiff's case against the 1st Defendant is stated as below. S/N 02hWGNrqt0aco8Lbp3PFqQ [36] On 28.6.2021 and 30.6.2021, the 1st Defendant represented that Shinryu had delivered and installed the Hardware at the Maju Intan Plant on or about 14.4.2021 through: a) written email statements; b) the Shinryu DO signed by Dato' JP Tan with Hualang's company stamp; c) statements that the Shinryu DO was sufficient proof because the Maju Intan Plant was not accepting visitors due to COVID-19; d) assurances of future inspection visits; e) oral telephone confirmations; f) photographs allegedly taken at the Maju Intan Plant; and g) information that Dato' JP Tan could provide further confirmation. (“the Representation”) [37] In reliance upon the Representation, the Plaintiff: S/N 02hWGNrqt0aco8Lbp3PFqQ a) signed the 1st Defendant's delivery order on 30.6.2021; b) cancelled Purchase Order 4300037329/2300020035 on 25.8.2021 and issued new Purchase Order 4300037508/2300020293 to the 2nd Defendant; and c) entered into the HPA reference 2nd Defendant on 1.9.2021 for RM10,158,824.00, signed the acceptance certificate, and provided bank guarantee reference 99140BGR638700 for RM6,426,900.00. [38] On 23.3.2022, Hualang informed the Plaintiff it suspected the Hardware had not been delivered. On 2.6.2022, the 1st Defendant admitted no team had been sent to supervise delivery, contrary to the Representation, but insisted the Hardware had been delivered by its agent. In early August 2022, the Plaintiff directed an investigation. On 25.8.2022, Hualang and Messrs. Zaid Ibrahim & Co. confirmed the Hardware had not been supplied, delivered or installed at the Maju Intan Plant. [39] The Plaintiff alleges: a) the Maju Intan Plant never received the Hardware; b) Dato' Joshua Peter Tan Pin Pin had no authority to receive it; and S/N 02hWGNrqt0aco8Lbp3PFqQ c) the photographs did not show the Maju Intan Plant. [40] The Plaintiff alleges fraudulent misrepresentation: the 1st Defendant made the Representation with knowledge or ought to have known it was false, or recklessly without caring whether it was true or false. [41] Alternatively, the Plaintiff alleges negligent misrepresentation: given the COVID-19 pandemic and movement control orders, the 1st Defendant owed a duty to act with reasonable care in ensuring the Representation was true and breached this duty. [42] The Plaintiff entered into the HPA obliging payment of RM10,158,824 for consideration that did not exist. The Plaintiff paid RM3,996,501.00 to the 2nd Defendant, RM198,331.96 in bank guarantee charges, and RM5,655,262.10 pursuant to the bank guarantee call. [43] Against the 1st Defendant, the Plaintiff seeks declarations that the HPA dated 1.9.2021, entered into between the Plaintiff and the 2nd Defendant, be declared void and invalid on the ground of a total failure of consideration, or alternatively, that the 2nd Defendant has totally failed to perform its obligations under the agreement such that it is void. S/N 02hWGNrqt0aco8Lbp3PFqQ [44] The Plaintiff further seeks declarations that the bank guarantee issued by Maybank Islamic Berhad under reference number 99140BGR6383700 be declared void and invalid, either because it was given as consideration for the HPA which has allegedly suffered a total failure of consideration, or alternatively because it was furnished pursuant to an agreement under which the 2nd Defendant has allegedly totally failed to perform its obligations. [45] In addition to these declaratory reliefs, the Plaintiff seeks a full indemnity from the 1st Defendant in respect of all losses and damages allegedly sustained as a consequence of the false representations said to have been made by the 1st Defendant. [46] The Plaintiff further claims general damages for the harm allegedly suffered, aggravated damages arising from the manner in which the 1st Defendant is said to have conducted itself, and exemplary damages by way of punishment and deterrence. [47] The Plaintiff also claims special damages in the sum of RM198,331.96, representing bank guarantee charges allegedly incurred. S/N 02hWGNrqt0aco8Lbp3PFqQ The 1st Defendant's Case [48] The 1st Defendant's case in the Plaintiff's claim against the 1st Defendant is stated as below. [49] Prior to contract, the Plaintiff, 1st Defendant, Hualang and Shinryu held meetings and agreed: a) Hualang and the Plaintiff would contract for the SIAT System; b) the Plaintiff and 1st Defendant would contract for hardware and software; c) for Phase 1, Shinryu would provide and deliver a sensor device directly to Hualang at the Maju Intan Plant; and d) Phases 2 and 3 would follow Phase 1 completion. [50] On 25.3.2021, the 1st Defendant issued three quotations (reference NEC/ENT/LH/FGV/SIAT/02-21/QT023) to Encik Ali bin Mustafa: RM9,318,182.00 for Phase 1, RM250,391.30 for Phase 2, and RM2,223,868.06 for Phase 3. [51] On 6.4.2021, the Plaintiff accepted by issuing three purchase orders, instructing delivery of all hardware equipment directly to the Maju Intan Plant. S/N 02hWGNrqt0aco8Lbp3PFqQ [52] The 1st Defendant directed Shinryu to deliver to the Maju Intan Plant. Shinryu provided the Shinryu DO dated 15.4.2021 with Hualang's representative's signature and company stamp confirming receipt in good condition. The 1st Defendant informed the Plaintiff that Shinryu and Hualang confirmed receipt. [53] The 1st Defendant had entrusted delivery to Shinryu and had no access to the Maju Intan Plant. Relying on the Shinryu DO and discussions where the Plaintiff and Hualang confirmed receipt, the 1st Defendant issued its delivery note on 28.6.2021. The Plaintiff signed it on 30.6.2021. [54] The Plaintiff made or was in a position to make personal verification with Hualang. The Plaintiff issued: a) packing list dated 5.7.2021 signed by Hualang; b) checklist dated 5.7.2021 signed by Hualang certifying completion of Economizer Section Modules replacement; and c) certificate of completion dated 6.7.2021 confirming all Phase 1 works were completed to the Plaintiff's satisfaction on 14.4.2021, endorsed by Hualang on 7.7.2021. S/N 02hWGNrqt0aco8Lbp3PFqQ [55] In September 2021, the 1st Defendant released full payment of RM8,800,000.00 to Shinryu: RM3,000,000.00 on 3.9.2021, RM3,000,000.00 on 10.9.2021, and RM2,800,000.00 on 15.9.2021. [56] In or around March 2021, the Plaintiff requested financing. The 1st Defendant introduced the 2nd Defendant. The arrangement provided: the Plaintiff would give a bank guarantee as collateral, the 2nd Defendant would issue a letter of undertaking to pay the 1st Defendant upon delivery completion, and the Plaintiff would pay the 2nd Defendant in instalments under the HPA. The Plaintiff issued Purchase Order 4300037508/2300020293 to the 2nd Defendant. [57] On 23.8.2022, the 1st Defendant received a letter from Messrs. Fahri, Azzat & Co. On 30.8.2022, the 1st Defendant replied explaining the delivery to the Maju Intan Plant. [58] The 1st Defendant was informed of Hualang's alleged denial only in or around December 2022 via the Plaintiff's letter dated 20.12.2022 which is more than 18 months after Phase 1 completion. Prior to this, the 1st Defendant received no notice from Hualang. The 1st Defendant provided proof of delivery as early as April 2021, and the Plaintiff made no complaint until December 2022. The 1st Defendant responded via letter dated 3.1.2023. S/N 02hWGNrqt0aco8Lbp3PFqQ Issues [59] The following issues were submitted by the parties relating to the Plaintiff's claim against the 1st Defendant: a) Issue 1: Did the 1st Defendant represent to the Plaintiff that they, through Shinryu, delivered and installed the Hardware at the Maju Intan Plant on 14.4.2021 (“the Representation”)? b) Issue 2: If the Representation was made, was it false and/or made negligently or fraudulently? c) Issue 3: If the Representation was not made, what were the representations made by the 1st Defendant? d) Issue 4: Whether the Hardware was to be delivered to the address of Maju Intan Plant and to be received by Hualang or by MIBE based on the parties' contractual documents? e) Issue 5: Whether Dato' JP Tan was authorised to receive the Hardware and sign off on its delivery on behalf of the appropriate recipient? f) Issue 6: Whether the Hardware was in fact delivered to Maju Intan Plant by Shinryu? S/N 02hWGNrqt0aco8Lbp3PFqQ g) Issue 7: When did the Plaintiff discover that the Hardware was allegedly not delivered to Maju Intan Plant? h) Issue 8: Whether the Plaintiff had made, or was in the position to make, personal verification of the delivery and thereafter signed the 1st Defendant's delivery order, and issued a packing list, checklist and certificate of completion to the 1st Defendant? i) Issue 9: Whether by the Plaintiff's own contemporaneous conduct, the Plaintiff is estopped from denying that the delivery of Hardware had been duly made? Analysis and Findings of the Court 1st Defendant's Representation to Plaintiff: Issues 1, 2 and 3 [60] The first three issues submitted by the parties concern whether the 1st Defendant made representations to the Plaintiff regarding delivery of the Hardware, whether such representations were false and/or made negligently or fraudulently, and what representations were actually made. These issues are closely interrelated and form the foundation of the Plaintiff's claim against the 1st Defendant for misrepresentation. The resolution of these issues requires careful examination of the communications between the S/N 02hWGNrqt0aco8Lbp3PFqQ parties, the evidence adduced at trial, and the legal framework governing claims for fraudulent and negligent misrepresentation. [61] The Plaintiff submitted that it was first informed of the alleged delivery on 28.6.2021, when DW2 telephoned PW3 and subsequently emailed the Shinryu DO dated 15.4.2021 together with the 1st Defendant’s Delivery Note for signature, despite earlier meetings and correspondence in April and May 2021 which made no mention of completed delivery. The Plaintiff further contended that on 30.6.2021, the 1st Defendant sent several emails and made follow-up calls, including attaching photographs and citing Movement Control Order restrictions, to persuade the Plaintiff to accept delivery, thereby representing that Shinryu had delivered and installed the Hardware at the Maju Intan Plant on 14.4.2021. [62] The Plaintiff alleged that these representations were false because MIBE never received or saw the Hardware, Dato’ JP Tan lacked authority to acknowledge delivery, and the photographs did not depict the Maju Intan Plant, relying in particular on the evidence of PW1 and PW2, both employees of MIBE. [63] The Plaintiff contended that the 1st Defendant knowingly or recklessly made false representations amounting to fraudulent misrepresentation, alleging that DW1 and DW2 were focused on concluding the transaction without caring S/N 02hWGNrqt0aco8Lbp3PFqQ whether the information was true, failed to verify delivery and the photographs with Dato’ JP Tan despite being in contact with him, and subsequently admitted that no team had been sent to supervise delivery. [64] In the alternative, the Plaintiff alleged negligent misrepresentation, submitting that given the COVID-19 pandemic and Movement Control Order restrictions which prevented site visits, the 1st Defendant owed a duty to act with reasonable care and skill in confirming delivery, that a duty arose from their commercial relationship, that this duty was breached by confirming delivery without proper verification or due diligence, and that the Plaintiff suffered loss as a consequence. [65] The 1st Defendant submitted that there was no direct contractual obligation on it to deliver the Hardware, as Shinryu was engaged as the delivery partner under prior agreements for Phase 1 of the Project to deliver the Hardware directly to Hualang at the Maju Intan Plant, with the 1st Defendant’s role limited to appointing Shinryu for that purpose. [66] The 1st Defendant submitted that it relied on the Shinryu DO signed and stamped by Hualang’s Group President, Dato’ JP Tan, as well as the Plaintiff’s own confirmation, including the CEO’s email dated 30.6.2021 confirming that delivery had been verified with Hualang before acceptance. S/N 02hWGNrqt0aco8Lbp3PFqQ [67] The 1st Defendant denied any false representation, contending that its statements were made in good faith based on contemporaneous documents, that it was unable to conduct site visits due to COVID-19 restrictions imposed by Hualang, and that no issue of non-delivery was raised by the Plaintiff or Hualang until the solicitors’ letter of 23.8.2022, more than a year later. [68] Having considered the evidence and submissions of all parties, I find that the 1st Defendant did make representations to the Plaintiff regarding the delivery of the Hardware on 14.4.2021. The evidence clearly establishes that through the communications on 28.6.2021 and 30.6.2021, particularly the emails from DW2 and DW1 and the Shinryu DO which was provided to the Plaintiff, the 1st Defendant represented that Shinryu had delivered the Hardware to the Maju Intan Plant. This finding addresses Issue 1 in the affirmative. However, for the reasons set out in my comprehensive analysis of Issue 6 below concerning whether the Hardware was in fact delivered to the Maju Intan Plant, I find that these representations were not false. The evidence establishes that delivery was completed to Hualang as the contractual recipient at the Maju Intan Plant location as contractually required. The Plaintiff's claim fails on the fundamental requirement that the representations must be proven to be false. Since the representations made by the 1st Defendant were true and accurate based on the delivery to the contractual recipient at the specified location, the claims S/N 02hWGNrqt0aco8Lbp3PFqQ for both fraudulent and negligent misrepresentation cannot succeed. This finding addresses Issues 2 and 3, and disposes of the Plaintiff's misrepresentation claims against the 1st Defendant. Issue 4: Delivery Location and Contractual Recipient [69] The Plaintiff contended that based on the contractual arrangements, the Hardware was to be delivered to the address of Maju Intan Plant and specifically to be received by MIBE as the operator of the plant facility. The Plaintiff argued that Hualang was merely the customer who awarded the Project to the Plaintiff but was not the intended recipient of the goods. The Plaintiff's position was that delivery to the Maju Intan Plant necessarily meant delivery to and receipt by MIBE, the company operating that facility. [70] The 1st Defendant and Shinryu jointly contended that the Hardware was correctly delivered to Hualang as the proper contractual party and end-user customer at the Maju Intan Plant location. They submitted that all contractual documents demonstrated that Hualang was the Plaintiff's customer for the Project, having awarded the contract to the Plaintiff via Letter of Award dated 22.3.2021. The Defendants maintained that the delivery obligation was to deliver to Hualang at the specified location of the Maju Intan Plant, and that this obligation was fulfilled when Hualang's authorised S/N 02hWGNrqt0aco8Lbp3PFqQ representative, Dato' JP Tan, acknowledged receipt of the Hardware at that location. [71] Having examined the contractual documents, I find that the Hardware was contractually required to be delivered to the address of Maju Intan Plant and to be received by Hualang as the end-user customer, not by MIBE. The contemporaneous documentary evidence supports this conclusion. The Plaintiff's argument conflates the delivery location (the physical address) with the contractual recipient (the party entitled to receive the goods). Whilst the address specified was the Maju Intan Plant, the party designated to receive the Hardware was consistently identified as Hualang throughout the contractual documentation. [72] The contractual framework clearly establishes Hualang as the Plaintiff's customer and the proper recipient of the Hardware. The Plaintiff's own Purchase

Order

para

No. 4300037239/2300020035 dated 6.4.2021 explicitly states “REQUEST BY: Shamsul Fadhli 31171576 - HUALANG RENEWABLE ENERGY SDN BHD.” This Purchase Order, issued by the Plaintiff itself, unequivocally identifies Hualang as the requesting party for the Hardware. The delivery location specified in this same Purchase Order was “MAJU INTAN BIOMASS POWER PLANT, 36000 PERAK”, indicating that whilst the delivery address was the plant location, the contracting party requesting the goods was Hualang. S/N 02hWGNrqt0aco8Lbp3PFqQ [73] The Letter of Award dated 22.3.2021 issued by Hualang to the Plaintiff and signed by Dato' Setia Dr. JP Tan as Group President of Hualang further confirms Hualang's status as the Plaintiff's customer. This Letter of Award constituted the foundational document establishing the contractual relationship between Hualang and the Plaintiff for the entire Project. PW3, Shamsul Fadhli bin Anuari, confirmed under cross-examination that Dato' JP Tan was the main person authorised to give instructions as the Plaintiff's customer. The evidence establishes that from the outset of the Project, Hualang was the customer who commissioned the work from the Plaintiff. [74] The contractual chain consistently identifies Hualang as the customer and intended recipient. Beyond the Purchase Order and Letter of Award, the following documents all reference Hualang as the contracting party: a) the Plaintiff's Packing List dated 5.7.2021, which was signed off by Hualang with Dato' JP Tan's signature and Hualang's company stamp; b) the Plaintiff's Checklist for Hardware and Software Implementation dated 5.7.2021, similarly signed by Dato' JP Tan on behalf of Hualang; and c) the Plaintiff's Certificate of Completion dated 6.7.2021, which was endorsed by Hualang on 7.7.2021. S/N 02hWGNrqt0aco8Lbp3PFqQ [75] Each of these documents, prepared and issued by the Plaintiff itself, treated Hualang as the party to whom delivery was made and from whom acceptance was obtained. [76] The evidence establishes that MIBE had no contractual involvement whatsoever in the Project. PW1 (Justin Ang Kheng Aun) and PW2 (Harisal bin Talib), both witnesses from MIBE, confirmed under cross-examination that MIBE had never issued any purchase order for the Hardware. PW2 confirmed in cross-examination that MIBE did not purchase any equipment from the 1st Defendant or Shinryu, and therefore was not entitled to give any acknowledgement for equipment delivered by those companies. At no time did the Plaintiff inform the 1st Defendant that MIBE was a company participating in the Project or that MIBE was supposed to be the recipient of the Hardware. The Plaintiff never instructed that delivery should be acknowledged by MIBE. [77] Significantly, even in the Plaintiff's own letter dated 20.12.2022 which first raised the allegation of non-delivery, the Plaintiff acknowledged that “the delivery of the equipment was undertaken by NEC Corporation Sdn Bhd to Hualang Renewable Energy Sdn Bhd ('HRE') at a Biomass plant operated by Maju Intan Biomass Energy Sdn Bhd ('MIBE')”. This contemporaneous acknowledgement by the Plaintiff itself demonstrates that the delivery was intended to be made to and received by Hualang at the location of the Maju Intan S/N 02hWGNrqt0aco8Lbp3PFqQ Plant, and not by whichever company was operating the Maju Intan Plant at that time. The Plaintiff's subsequent attempt to recharacterise the contractual obligation as requiring delivery to MIBE contradicts its own prior understanding and documentation. [78] The Plaintiff's case represents a fundamental misunderstanding of the contractual arrangements. There is a critical distinction between the delivery location (the physical address where goods are to be delivered) and the contractual recipient (the party entitled to take delivery and acknowledge receipt). The contract required delivery to the Maju Intan Plant location, but to be received by Hualang as the Plaintiff's customer and end-user. This arrangement is entirely consistent with commercial reality: Hualang, as the customer who commissioned the Project and would operate the SIAT System at the plant location, was the proper party to receive the Hardware at that location. [79] For the reasons set out above, I find that the contractual obligation was to deliver the Hardware to Hualang at the address of the Maju Intan Plant. The delivery was not required to be made to or acknowledged by MIBE, which had no contractual relationship with any party to the transaction. The Plaintiff's attempt to impose MIBE as the necessary recipient finds no support in the contractual documentation and is contradicted by the Plaintiff's own contemporaneous conduct and acknowledgements. The Defendants correctly S/N 02hWGNrqt0aco8Lbp3PFqQ understood and fulfilled their obligation by delivering the Hardware to Hualang's authorised representative at the specified location. Issue 5: Authority of Dato' JP Tan [80] The Plaintiff submitted that Dato’ JP Tan lacked authority to receive the Hardware on behalf of Maju Intan. In its Amended Statement of Claim, the Plaintiff pleaded that “Joshua Peter Tan Pin Pin … bukan seorang yang mempunyai kuasa untuk menerima Perkakasan tersebut bagi pihak Maju Intan.” The Plaintiff’s position was that although Dato’ JP Tan signed various delivery documents, including the Shinryu DO, he did not possess the requisite authority to acknowledge receipt of the Hardware for Maju Intan. [81] In support, the Plaintiff relied on a letter from Messrs Zaid Ibrahim & Co dated 25.8.2022, stating that they acted for MIBE and confirming that this entity had no knowledge of the Hardware, that the Hardware had never been supplied, delivered or installed at Maju Intan, and that Dato’ JP Tan was not an authorised agent empowered to receive the Hardware on its behalf. The Plaintiff therefore submitted that the Defendants’ reliance on documents signed by Dato’ JP Tan was misplaced, as he lacked authority to bind Maju Intan or validly acknowledge delivery. S/N 02hWGNrqt0aco8Lbp3PFqQ [82] The 1st Defendant submitted that Dato’ JP Tan was duly authorised to receive the Hardware on behalf of Hualang, the Plaintiff’s customer and end user. It emphasised that Dato’ JP Tan was the Group President of Hualang, as evidenced by the Letter of Award dated 22.3.2021, which he signed in that capacity when awarding the Project to the Plaintiff. [83] The 1st Defendant further submitted that the Plaintiff’s own conduct throughout the Project consistently recognised Dato’ JP Tan’s authority. The Plaintiff relied on the Letter of Award signed by him, communicated with him throughout the Project without objection, and, most significantly, itself prepared the Packing List, Checklist and Certificate of Completion and expressly requested the 1st Defendant’s assistance to procure Dato’ JP Tan’s signature and endorsement on those documents in emails dated 5.7.2021 and 6.7.2021. [84] In addition, the 1st Defendant relied on the evidence of PW3, who acknowledged during cross-examination that Dato’ JP Tan was “the main person who is authorized to give you instruction” on behalf of Hualang. The 1st Defendant contended that the Plaintiff’s later denial of Dato’ JP Tan’s authority was inconsistent and opportunistic. [85] Finally, the 1st Defendant argued that the Plaintiff sought to conflate the physical delivery location (Maju Intan Plant) with a separate legal entity (MIBE) in order to manufacture doubt. The 1st Defendant characterised this as a red herring, S/N 02hWGNrqt0aco8Lbp3PFqQ maintaining that Hualang was the contractual recipient, that delivery was intended to Hualang at the plant location, and that Dato’ JP Tan had full authority to act on Hualang’s behalf in acknowledging delivery. [86] The evidence establishes that Dato' JP Tan held the position of Group President of Hualang and was properly authorised to receive the Hardware and sign off on its delivery on behalf of Hualang. His designation as “Group President” appeared on multiple contemporaneous documents, including most significantly the Letter of Award dated 22.3.2021 which was issued by Hualang to the Plaintiff awarding the Project. This Letter of Award bore Dato' JP Tan's signature in his capacity as Group President on behalf of Hualang. The Shinryu DO dated 15.4.2021 similarly bears his signature together with Hualang's official company stamp, with an express acknowledgement stating “Received the above in good condition”. Additionally, three critical documents prepared by the Plaintiff itself, namely the Packing List dated 5.7.2021, the Checklist for Hardware and Software Implementation dated 5.7.2021, and the Certificate of Completion dated 6.7.2021, all bore Dato' JP Tan's signature together with Hualang's company stamp. This consistent pattern of documentary evidence across multiple documents spanning several months demonstrates that Dato' JP Tan was recognised and treated as the authorised representative of Hualang throughout the Project. S/N 02hWGNrqt0aco8Lbp3PFqQ [87] The presence of Dato' JP Tan's signature together with the affixation of Hualang's company stamp on the delivery documentation entitles the 1st Defendant and Shinryu to rely upon the principle of indoor management, commonly known as the Turquand rule. This principle was established in the landmark case of Royal British Bank v Turquand [1843-60] All ER Rep 435 (Court of Exchequer Chamber), wherein it was held: “We may now take for granted that the dealings with these companies are not like dealings with other partnerships and that parties dealing with them are bound to read the statute and the deed of settlement. But they are not bound to do more. And the party here, on reading the deed of settlement, would find not a prohibition from borrowing, but a permission to do so on certain conditions. Finding that the authority might be made complete by a resolution, he would have a right to infer the fact of a resolution authorizing that which on the face of the document appeared to be legitimately done.” [88] The principle was reaffirmed by the High Court of Malaya in JKT Petroleum Sdn Bhd & Ors v T & O Resources Sdn Bhd [2016] 7 MLJ 52, which held: “...the plaintiff is entitled to the benefit of the Turquand rule. The evidence suggests that the plaintiff had acted in good faith and had no notice or no grounds to think that the said director was no longer a director and was acting without authority. The presence of the company seal and the signature of the other director with authority only lend credence to the assertion that the first defendant had all along intended to be bound by the said loan arrangement and it is only now when they are facing legal action that this assertion of invalidity is being raised”. S/N 02hWGNrqt0aco8Lbp3PFqQ [89] Simply put, the signature by Dato' JP Tan and the affixation of Hualang's company stamp on the delivery documents entitled the Defendants to assume that these documents were properly executed with due corporate authority. [90] Throughout the course of dealings, the Plaintiff itself had acted in a manner entirely consistent with treating Dato' JP Tan as having proper authority to represent Hualang. The Plaintiff produced and relied upon the Letter of Award received from Hualang and signed by Dato' JP Tan in his capacity as Group President. The Plaintiff's own internal emails, correspondence and documents consistently referred to and relied upon communications and confirmations from Dato' JP Tan without any suggestion that he lacked authority. Most tellingly, the Plaintiff prepared the Packing List, Checklist and Certificate of Completion and then specifically requested the 1st Defendant's assistance in obtaining Dato' JP Tan's signature and endorsement on these documents. This was evidenced by emails dated 5.7.2021 and 6.7.2021 from the Plaintiff's Encik Rizal bin Sa'ari to the 1st Defendant's Ms Nurul Huda Binti Abdul Rahman, explicitly requesting that these documents “needs a signature from the representative from Hualang or Maju Intan” and subsequently that the Certificate of Completion “needs Dato JP Tan's endorsement”. DW1 testified: “Yes they are FGV, the Rizal... because he is new, seeking our help to contact JP Tan to get the sign off.” The Plaintiff did not at any stage during the Project raise any concerns about Dato' JP Tan's S/N 02hWGNrqt0aco8Lbp3PFqQ representative capacity to acknowledge delivery or receive goods on behalf of Hualang. This conduct is wholly inconsistent with the Plaintiff's present contention that Dato' JP Tan lacked authority. [91] The Plaintiff's own witness, PW3 (Encik Shamsul Fadhli bin Anuari), expressly acknowledged Dato' JP Tan's authority during cross-examination. When referred to the Letter of Award signed by Dato' JP Tan as Group President on behalf of Hualang, the following exchange took place: “ECH: And this is signed by Dato' Setia Dr. JP Tan, Group President, on behalf of Hualang Renewable Energy Sdn Bhd, correct? PW3: Correct ECH: So the main person who is authorized to give you instruction, your customer, is Dato' Setia Dr. JP Tan, correct? PW3: Yeah. Correct.” [92] This testimony is particularly significant as it represents a clear acknowledgement by the Plaintiff's own employee that Dato' JP Tan was “the main person who is authorized to give you instruction” on behalf of Hualang. It is inconsistent for the Plaintiff to now challenge the authority of an individual whom its own witness acknowledged as the authorised representative of its customer. S/N 02hWGNrqt0aco8Lbp3PFqQ [93] The evidence demonstrates that there was no contemporaneous challenge to Dato' JP Tan's authority at any material time during or immediately following the alleged delivery. DW2 testified that she was in direct WhatsApp contact with Dato' JP Tan throughout the relevant period, and that he never once indicated that the Hardware had not been delivered or that he lacked authority to act on behalf of Hualang. The Plaintiff's correspondence over a period extending from July 2021 through to March 2022 consistently treated Dato' JP Tan as the authorised representative of Hualang, with emails referring to meetings with him and site visit arrangements requiring his approval. The challenge to his authority emerged only belatedly in the Plaintiff's Amended Statement of Claim, wherein it was pleaded that “Joshua Peter Tan Pin Pin yang telah mengakui terima pesanan penghantaran Shinryu Co Sendirian Berhad bukan seorang yang mempunyai kuasa untuk menerima Perkakasan tersebut bagi pihak Maju Intan.” Significantly, the Plaintiff's pleading implicitly conceded that Dato' JP Tan was indeed the person who signed the Shinryu DO, whilst attempting to dispute his authority to act. However, neither Dato' JP Tan nor any representative from Hualang was called as a witness to support this belated assertion. The total absence of any contemporaneous challenge to Dato' JP Tan's authority, combined with the Plaintiff's consistent treatment of him as authorised throughout the Project, leads inexorably to the conclusion that he possessed the requisite S/N 02hWGNrqt0aco8Lbp3PFqQ authority to receive the Hardware and execute the relevant documentation on behalf of Hualang. Issue 6: Whether Hardware was Delivered [94] The Plaintiff submitted that the Hardware was never delivered to the Maju Intan Plant. Its case relied primarily on the evidence of two witnesses from MIBE, namely PW1 (Justin Ang Kheng Aun, Operations Director) and PW2 (Harisal bin Talib, Operations Manager). Both witnesses testified that they had never seen the Hardware at the plant and had no knowledge of any delivery. [95] The Plaintiff contended that MIBE, as the operator of the Maju Intan Plant, was the proper recipient of the Hardware, and since MIBE never received it, no valid delivery could have occurred. It further argued that Dato’ JP Tan, who signed the Shinryu DO, lacked authority to receive the Hardware on behalf of MIBE or the Maju Intan Plant. [96] In addition, the Plaintiff challenged the photographs sent by the 1st Defendant, asserting that they did not depict the Maju Intan Plant. On this basis, the Plaintiff submitted that the 1st Defendant’s representations regarding delivery were false, and characterised its witnesses’ testimony as direct proof of non-delivery, while dismissing the Defendants’ documentary evidence. S/N 02hWGNrqt0aco8Lbp3PFqQ [97] The 1st Defendant submitted that the Hardware was duly delivered on 14.4.2021 by Shinryu to Hualang, the Plaintiff’s customer, at the Maju Intan Plant, and that this was supported by overwhelming contemporaneous documentary evidence. [98] The 1st Defendant emphasised that Hualang was the proper contractual recipient, having awarded the Project to the Plaintiff by way of the Letter of Award dated 22.3.2021. It relied on the Shinryu DO dated 15.4.2021, which was signed by Dato’ JP Tan as Group President of Hualang and stamped with Hualang’s official company stamp, bearing the endorsement “Received the above in good condition.” [99] Most significantly, the 1st Defendant relied on the email from the Plaintiff’s Chief Executive Officer, Encik Ali bin Mustafa, dated 30.6.2021, in which he expressly stated that he had personally verified the delivery with Hualang and confirmed that all documents were in order. The 1st Defendant submitted that this contemporaneous confirmation showed that the Plaintiff had independently verified delivery before accepting it. [100] The 1st Defendant further submitted that the subsequent signing of the delivery note on 30.6.2021, together with the Packing List, Checklist, and Certificate of Completion issued in July 2021, all bearing Hualang’s endorsement, constituted conclusive proof of delivery. It argued that the Plaintiff’s oral S/N 02hWGNrqt0aco8Lbp3PFqQ evidence could not displace this body of contemporaneous documentary evidence, and that the Plaintiff had failed to discharge its burden of proving non-delivery. [101] The fundamental issue is whether the Plaintiff has discharged its burden of proving that contractually compliant delivery was not made to the Maju Intan Plant. The burden of proof clearly rests with the Plaintiff as the party asserting non-delivery or improper delivery. The Plaintiff bears the onus of establishing on the balance of probabilities that the Hardware was not delivered to the proper recipient at the specified location, and that any representations made regarding delivery were false. [102] The Plaintiff relied primarily on oral testimony from witnesses who fundamentally lacked direct personal knowledge of the alleged delivery events. PW1 (Justin Ang Kheng Aun) testified that he only joined MIBE as Operations Director in April 2022, more than one year after the alleged delivery date of 14.4.2021. When cross-examined, PW1 confirmed: “You can confirm that you have no personal knowledge of the matters that happened in 2021?” to which he answered “Yes.” PW1 further admitted that he was only privy to documents in 2022, which was one year after the incident took place. Similarly, PW2 (Harisal bin Talib), the Operations Manager at MIBE, admitted that he was not present at the Maju Intan Plant on 14.4.2021. Most significantly, both PW1 and PW2 confirmed that MIBE had no contractual S/N 02hWGNrqt0aco8Lbp3PFqQ involvement in the Project and had never issued any purchase order for the Hardware. [103] The deficiency in the Plaintiff's evidence is compounded by the fact that PW1 and PW2 could provide no evidence regarding delivery to the contractually specified recipient, Hualang. PW1 confirmed that the Shinryu DO was executed by Hualang and stated that he did not know Dato' JP Tan. PW2 testified that he knew Hualang but did not know the Plaintiff or any of the parties to these proceedings, nor their relationship. These admissions demonstrate that the MIBE witnesses were not privy to the contractual arrangements and delivery instructions as between the Plaintiff, the Defendants, and Hualang. [104] As mandated by Section 60(1) of the Evidence Act 1950, oral evidence must in all cases be direct, meaning it must come from a witness who personally saw, heard, or otherwise perceived the fact in question. It reads: “(1) Oral evidence shall in all cases whatever be direct, that is to say—

if it refers to a fact which could be seen, it must be the evidence of a witness who says he saw it;

if it refers to a fact which could be heard, it must be the evidence of a witness who says he heard it;

if it refers to a fact which could be perceived by any other sense or in any other manner, it must be the evidence of a witness who says he perceived it by that sense or in that manner; S/N 02hWGNrqt0aco8Lbp3PFqQ

if it refers to an opinion or to the grounds on which that opinion is held, it must be the evidence of the person who holds that opinion on those grounds.” [105] The Plaintiff's witnesses could not provide direct evidence of non-delivery to the contractually specified recipient, Hualang. Their testimonies regarding events on 14.4.2021 constituted hearsay evidence, being statements about matters of which they had no personal knowledge. In Subramaniam v Public Prosecutor [1956] 22 MLJ 220 (Privy Council), it was held: “Evidence of a statement made to a witness by a person who is not himself called as witness... is hearsay and inadmissible when the object of the evidence is to establish the truth of what is contained in the statement.” The Plaintiff's reliance on PW1 and PW2 to prove non-delivery to Hualang infringes this fundamental rule of evidence. [106] The testimonies of PW1 and PW2 amount to what was described in Medan Prestasi Sdn Bhd v Ketua Pengarah Hasil Dalam Negeri [2023] MLJU 1477 (High Court) it was decided that where contemporaneous documentary evidence remains authentic and uncontradicted, bare oral assertions, intentions, or subjective explanations which are unsupported by independent evidence carry little or no probative value and cannot displace such documents. Such bare statements, unsupported by direct personal knowledge or contemporaneous documentation, cannot displace the compelling documentary evidence presented by the S/N 02hWGNrqt0aco8Lbp3PFqQ Defendants. The Plaintiff's witnesses could state only that they never saw the Hardware at MIBE's premises, but were unable to explain or contradict the extensive contemporaneous documentation evidencing delivery to Hualang. [107] The Plaintiff sought to rely on TPW1's testimony that goods were delivered to an “empty lot next to Maju Intan.” However, careful analysis of TPW1's evidence does not assist the Plaintiff's case. TPW1 (Muhamad Zaidi bin Abdullah), Shinryu's witness, provided direct first-hand testimony about the loading, transportation, and delivery of the Hardware. When examined on the Shinryu DO, TPW1 confirmed: “Yang menerima DO ini adalah Dato JP Tan daripada Hualang” (The person who received this DO was Dato' JP Tan from Hualang). TPW1 further testified that he was directed to deliver to Hualang and that delivery was made to Hualang's representative as instructed. [108] TPW1's evidence establishes that the delivery location was determined by and acceptable to the authorised recipient, Dato' JP Tan, who signed the Shinryu DO dated 15.4.2021 on behalf of Hualang with the company's official stamp. The Shinryu DO bears the notation “Received the above in good condition” with Dato' JP Tan's signature and Hualang's company stamp. The exact location within the broader Maju Intan site area is not determinative where, as here, the authorised contractual recipient accepted delivery according S/N 02hWGNrqt0aco8Lbp3PFqQ to their instructions and requirements. TPW1's testimony actually supports the case for delivery having been completed, as he confirmed that the goods were delivered to the location specified by Hualang's representative and that all proper delivery documentation was executed. [109] Against the inadequate oral evidence presented by the Plaintiff, the Defendants have presented compelling contemporaneous documentary evidence. The documentary evidence includes: a) The Shinryu DO dated 15.4.2021 with delivery date stated as 14.4.2021, signed by Dato' JP Tan as Group President of Hualang and stamped with Hualang's company stamp; b) the 1st Defendant's Delivery Note dated 28.6.2021; c) the Plaintiff's own Packing List dated 5.7.2021 bearing Hualang's company stamp and Dato' JP Tan's signature; d) the Plaintiff's Checklist for Hardware and Software Implementation dated 5.7.2021 with Hualang's company stamp and Dato' JP Tan's signature; and S/N 02hWGNrqt0aco8Lbp3PFqQ e) the Plaintiff's Certificate of Completion dated 6.7.2021 with endorsement by Hualang's company stamp and Dato' JP Tan's signature dated 7.7.2021. [110] Most significantly, the Plaintiff's own Chief Executive Officer, Ali bin Mustafa, provided explicit contemporaneous confirmation of delivery in his email dated 30.6.2021 at 7:40 PM. In this crucial communication, Ali bin Mustafa stated: “Please proceed with the acceptance. I duly aware of the situation and I did my verifications on the followings: 1. All documents are satisfactory in order. 2. Further clarifications being done personally with NEC as our supplier and Hualang as our customer on current site condition and related documentation.” This email was sent to the Plaintiff's internal personnel including PW3, who confirmed in cross-examination that the email demonstrated that Ali bin Mustafa had verified with Hualang directly regarding the delivery. [111] This email represents unequivocal contemporaneous evidence that the Plaintiff's highest officer had personally verified the delivery situation with both the 1st Defendant and Hualang before authorising acceptance. The language used by Ali bin Mustafa is clear and unambiguous. He conducted personal verifications with “Hualang as our customer on current site condition and related documentation.” The email was sent at a time when Ali bin Mustafa had no reason to fabricate or misrepresent the position, and it directly contradicts the Plaintiff's subsequent position that no proper S/N 02hWGNrqt0aco8Lbp3PFqQ delivery occurred. Following this verification, the Plaintiff proceeded to sign the delivery note and issue the Certificate of Completion, further confirming acceptance. [112] The principle established in Tindok Besar Estate Sdn Bhd v Tinjar Co [1979] 2 MLJ 229 (Federal Court) at page 234 is directly applicable to the present case. Chang Ming Tat FJ stated in that case that contemporaneous documentary evidence should be preferred over subsequent recollections. His Lordship held that judicial reception of evidence requires that oral evidence be critically tested against the whole of the other evidence and the circumstances of the case, and that contemporaneous documents provide more reliable evidence than witnesses' subsequent memories of events. [113] Similarly, in Foo Sam Ming v Archi Environ Partnership [2004] 1 MLJ 449 (Court of Appeal) at page 452, Gopal Sri Ram JCA (as he then was) held that courts should prefer contemporaneous documents over contradictory oral explanations. In the present case, the contemporaneous documentary evidence, particularly Ali bin Mustafa's email of 30.6.2021, the signed delivery orders, and the Certificate of Completion, must be preferred over the Plaintiff's subsequent assertions made nearly two years later, after Hualang refused payment. The documents were created at the material time by persons with direct knowledge and involvement, whereas the Plaintiff's current position is contradicted by its own contemporaneous conduct. S/N 02hWGNrqt0aco8Lbp3PFqQ [114] The Plaintiff's case fundamentally mischaracterises the nature of the delivery requirement under the contractual arrangements. The contractual obligation was to deliver the Hardware to Hualang at the Maju Intan Plant location. The evidence comprehensively establishes that: a) delivery was made to the authorised recipient, namely Hualang through its Group President, Dato' JP Tan; b) delivery was made at the Maju Intan Plant location as specified in the purchase orders and quotations; c) the recipient accepted delivery and executed proper documentation including the Shinryu DO with company stamp and authorised signature; and d) the Plaintiff's own CEO personally verified and confirmed delivery with the recipient before authorising the Plaintiff's acceptance. [115] The Plaintiff's attempt to distinguish between delivery “to MIBE” versus delivery “to Hualang” at the Maju Intan Plant location represents a fundamental misunderstanding of the contractual arrangements. MIBE was never the contractual recipient of the Hardware. The Plaintiff's own Purchase Order No. 4300037239/2300020035 dated 6.4.2021 explicitly states “REQUEST BY: Shamsul Fadhli 31171576 - HUALANG RENEWABLE ENERGY SDN BHD.” The quotations, S/N 02hWGNrqt0aco8Lbp3PFqQ purchase orders, and all delivery documentation consistently identified Hualang as the end-user and recipient. The delivery was to be made to Hualang at the plant location, which is precisely what occurred and was confirmed by all contemporaneous documentation. [116] The contemporaneous documentary evidence shows that the Plaintiff's CEO, Ali bin Mustafa, personally verified the delivery situation with Hualang before accepting it. The email dated 30.6.2021 contains explicit statements that he had conducted “personal verifications” and “further clarifications being done personally with NEC as our supplier and Hualang as our customer on current site condition and related documentation.” This demonstrates that the Plaintiff was fully aware of the delivery circumstances, including the precise location and condition of the Hardware, at the time of acceptance. PW3 admitted in cross-examination that based on the email, Ali bin Mustafa had verified with the customer directly regarding delivery. [117] Following Ali bin Mustafa's verification and express instruction to “proceed with the acceptance,” the Plaintiff signed the delivery note on 30.6.2021 and subsequently issued the Certificate of Completion dated 6.7.2021. The Certificate of Completion, signed by Ali bin Mustafa himself, certified that “All works on the above contract have been completed on the actual completion date noted below, to my satisfaction in accordance with the specification, provisions, S/N 02hWGNrqt0aco8Lbp3PFqQ and conditions of the contract. Installed on 14 April 2021.” This Certificate was then endorsed by Hualang through Dato' JP Tan as Group President on 7.7.2021. These actions are wholly inconsistent with any allegation of non-delivery or improper delivery. [118] The Plaintiff's credibility is fundamentally undermined by its failure to call Ali bin Mustafa, the CEO who personally verified delivery, signed the Certificate of Completion, and authorised acceptance. Ali bin Mustafa was listed in the Plaintiff's witness list at Enclosure 87, but the Plaintiff elected not to call him to testify. This is particularly significant given that Ali bin Mustafa was the most crucial witness regarding the verification of delivery and the decision to proceed with acceptance. Under Section 114(g) of the Evidence Act 1950, the court may presume that evidence which could be and is not produced would, if produced, be unfavourable to the person who withholds it. [119] The principle governing adverse inference is well-established. In Mohammad Azanul Haqimi bin Tuan Ahmad Azahari v Timbalan Menteri Dalam Negeri [2019] 6 MLJ 220 (Federal Court), the Federal Court held that the wilful withholding of available and material evidence entitles the court to presume that such evidence would have been unfavourable to the withholding party. Similarly, in Gurmit Kaur a/p Jaswant Singh v Tung Shin Hospital [2012] 4 MLJ 260 (High Court) and S/N 02hWGNrqt0aco8Lbp3PFqQ Chan Yoke Lain v Pacific & Orient Insurance Co [1999] 1 MLJ 30 (Court of Appeal), the courts affirmed that the failure to call material witnesses available to a party raises a presumption against that party. [120] In the present case, the Plaintiff not only failed to call Ali bin Mustafa but also failed to call any representative from Hualang, including Dato' JP Tan who signed all the delivery documentation. The Plaintiff also did not call other employees named in its witness list, including Encik Mohamad Tariq Bin Zakaria and Puan Rosnaiza Binti Hasan, both of whom were involved in the Project. The absence of these critical witnesses justifies the drawing of an adverse inference that their evidence would not have supported the Plaintiff's case and would have confirmed that delivery was properly made to Hualang at the Maju Intan Plant. [121] As established in Sri Datai Engineering Sdn Bhd v Daiho Corp [2016] MLJU 866 (Court of Appeal), a party who remains silent and allows other parties to act in reliance on its position cannot later deny that position. The Court of Appeal in that case stated: “I find this silence and lack of pursuit is in fact consistent with the defendant's assertion that the plaintiff has actually been fully paid for the costs and additional costs due to APC. That payment and receipt of payment as well as the plaintiff's subsequent conduct estops the plaintiff from now making the present claim.” S/N 02hWGNrqt0aco8Lbp3PFqQ [122] In the present case, the Plaintiff's acceptance of delivery through its CEO's email of 30.6.2021, followed by the signing of the delivery note, the issuance of the Certificate of Completion on 6.7.2021, the entry into the HPA on 1.9.2021, and almost two years of silence until Hualang refused payment in March 2022, clearly estops the Plaintiff from now challenging the delivery. The Plaintiff allowed the 1st Defendant to pay Shinryu the full sum of RM8,800,000.00 in September 2021 in reliance on the accepted delivery. The Plaintiff permitted the 2nd Defendant to disburse financing and issue payment to the 1st Defendant based on the same representations. All parties acted in reliance on the Plaintiff's contemporaneous acceptance of delivery. [123] I therefore find that the Hardware was delivered to the Maju Intan Plant on 14.4.2021 as evidenced by the contemporaneous documentation and confirmations. The delivery satisfied the contractual requirements by being made to the proper recipient, Hualang, through its authorised representative Dato' JP Tan, at the specified location. The Shinryu DO dated 15.4.2021, bearing Dato' JP Tan's signature and Hualang's company stamp, the 1st Defendant's delivery note, the Plaintiff's own delivery-related documents dated 5.7.2021 and 6.7.2021, and most critically, the Plaintiff's CEO's email dated 30.6.2021 confirming personal verification with Hualang, collectively constitute overwhelming evidence of proper delivery. The Plaintiff has wholly failed to discharge its burden of proving non-delivery or improper S/N 02hWGNrqt0aco8Lbp3PFqQ delivery, and the Plaintiff is estopped by its own contemporaneous conduct from now denying that delivery was completed. Issue 7: Discovery of Alleged Non-delivery [124] The Plaintiff submitted that it first became aware of Hualang’s assertion of non-delivery in or around March 2022, when it was pursuing payment of invoices for the Project. According to PW3, after several discussions regarding payment, Hualang denied the supply, delivery and installation of the Hardware around May 2022. [125] The Plaintiff’s position was that this issue only surfaced in the course of chasing payment, when Hualang asserted that delivery had not been made to the Maju Intan Plant. The Plaintiff contended that it subsequently received confirmation from MIBE’s solicitors on 25.8.2022 that the Hardware had not been supplied, delivered or installed at Maju Intan, and that Dato’ JP Tan lacked authority to act on behalf of MIBE. [126] Following this, the Plaintiff submitted that it formally raised the non-delivery issue with the Defendants by way of a letter dated 20.12.2022 to the 2nd Defendant, suspending further payments after conducting an internal investigation into the allegations. S/N 02hWGNrqt0aco8Lbp3PFqQ [127] The 1st Defendant submitted that it was only informed of the allegation of non-delivery in or around December 2022, when the 2nd Defendant showed it the Plaintiff’s letter dated 20.12.2022. It emphasised that this occurred more than 18 months after the completion of Phase 1 of the Project. [128] The 1st Defendant stressed that, prior to December 2022, it had received no notice whatsoever from Hualang of any alleged non-delivery, notwithstanding the existence of acceptance documents endorsed by both the Plaintiff and Hualang, subsequent discussions on Phases 2 and 3, and the fact that the 1st Defendant had paid Shinryu in full. [129] The 1st Defendant further submitted that it had provided proof of delivery to the Plaintiff as early as April 2021, and that no complaint of non-delivery was raised until December

2022

It characterised this as an inordinate delay, which it argued seriously undermined the credibility of the Plaintiff’s non-delivery claim. [130] The evidence establishes that the Plaintiff first learned of Hualang's assertion of non-delivery in March 2022. This timing was confirmed by PW3 in cross-examination, who testified that around March 2022, the Plaintiff held discussions with Hualang regarding the Plaintiff's invoice for payment of the Project, and after several discussions with Hualang about payment, Hualang denied the supply, delivery and installation of the Hardware around May 2022. The S/N 02hWGNrqt0aco8Lbp3PFqQ critical fact admitted by PW3 is that this allegation coincided with Hualang's non-payment to the Plaintiff. When asked directly whether there was any document from Hualang issued to the Plaintiff stating that they had not received delivery, PW3 testified: “As far as I'm concerned, I've not received anything from Hualang, I've not no – no, no letters.” Thus, whilst I find that discovery did occur in or around March 2022 when Hualang refused payment, this discovery was not triggered by any independent investigation of delivery issues but rather by Hualang's refusal to make payment. [131] The Plaintiff's conduct from 15.4.2021 (when the Shinryu DO was signed) to March 2022 was wholly and unequivocally consistent with acceptance of delivery. First, the Plaintiff signed the Shinryu DO dated 14.4.2021 without protest. Second, on 30.6.2021, the Plaintiff's CEO, Ali bin Mustafa, issued his express email instruction to “proceed with the acceptance” based on his personal verifications with “Hualang as our customer on current site condition and related documentation.” Third, on 5.7.2021, the Plaintiff issued to Hualang the Packing List and Checklist for Hardware and Software Implementation. Fourth, on 6.7.2021, the Plaintiff's CEO signed the Certificate of Completion confirming that “all works on the above contract have been completed on the actual completion date noted below to my satisfaction in accordance with the specifications, provisions and conditions of the contract” with the installation date noted as 14.4.2021. Fifth, the Plaintiff proceeded with the hire S/N 02hWGNrqt0aco8Lbp3PFqQ purchase agreement with the 2nd Defendant on 1.9.2021. Sixth, the Plaintiff issued a bank guarantee and allowed payment of RM8,800,000.00 to be made to the 1st Defendant. All of these actions, spanning from April 2021 to September 2021 and beyond, demonstrate complete acceptance and acknowledgement of the delivery. [132] The Certificate of Completion dated 6.7.2021 carries particular weight in the analysis of the Plaintiff's knowledge and acceptance. This document was signed by Ali bin Mustafa in his capacity as Chief Executive Officer of the Plaintiff. PW3 confirmed in cross-examination that Ali bin Mustafa was the CEO at the time he signed the Certificate of Completion and that he was also a director of the Plaintiff at that time. The Certificate expressly stated that all works had been completed to the satisfaction of the Plaintiff in accordance with the contract specifications. This Certificate was then acknowledged and endorsed by Dato' JP Tan, Group President of Hualang, on 7.7.2021 with Hualang's company stamp affixed. PW3 also admitted in cross-examination that “from the email” he agreed that Ali bin Mustafa had verified with the customer directly regarding the delivery. This CEO-level verification and sign-off on completion documentation represents the highest level of corporate acknowledgement possible and directly contradicts any subsequent claim of non-delivery. S/N 02hWGNrqt0aco8Lbp3PFqQ [133] The Plaintiff's failure to call Ali bin Mustafa, the very CEO who signed the Certificate of Completion and verified delivery, constitutes a critical deficiency in the Plaintiff's case. Ali bin Mustafa was listed in the Plaintiff's own witness list, evidencing the Plaintiff's awareness that he was a material witness. PW3 testified that Ali bin Mustafa was suspended and later terminated from his position at the Plaintiff company, stating: “Due to this case, dia suspended... 2021, bila kita tahu benda ini, dah setahun, kan? Dan terus HR ambil tindakan dan dia suspend seven or nine months then lepas tu terminate.” Despite the availability of this witness and his central role in the acceptance of delivery, the Plaintiff elected not to call him to testify. Similarly, the Plaintiff failed to call Dato' JP Tan from Hualang, who had signed all the delivery documentation including the Certificate of Completion, Packing List, and Checklist. No one from Hualang testified to deny the authority to accept delivery or to challenge the authenticity of these documents. [134] Under section 114(g) of the Evidence Act 1950, the court may presume that evidence which could be and is not produced would, if produced, be unfavourable to the person who withholds it. This principle has been consistently applied by the Malaysian courts. In Mohammad Azanul Haqimi bin Tuan Ahmad Azahari v Timbalan Menteri Dalam Negeri, the Federal Court affirmed that the wilful withholding of available and material evidence entitles the court to presume that such evidence would have been unfavourable to the withholding S/N 02hWGNrqt0aco8Lbp3PFqQ party. In Gurmit Kaur a/p Jaswant Singh v Tung Shin Hospital, the High Court applied section 114(g) where a party failed to call material witnesses. Similarly, in Chan Yoke Lain v Pacific & Orient Insurance Co, the Court of Appeal invoked adverse inference against a party who failed to call witnesses with personal knowledge of the relevant facts. The Plaintiff bore the burden of proving non-delivery, yet failed to call the one person, Ali bin Mustafa, who signed the Certificate of Completion, who directed acceptance of the Shinryu DO, and who confirmed personal verifications with Hualang. The adverse inference that must be drawn is that had Ali bin Mustafa been called to testify, his evidence would not have supported the Plaintiff's allegation of non-delivery. [135] The circumstances surrounding the Plaintiff's discovery raise serious questions about the genuineness of the non-delivery claim. PW3's cross-examination testimony reveals the opportunistic nature of this alleged discovery. When asked whether it was correct that Hualang's denial of delivery coincided with their non-payment to the Plaintiff, PW3 answered “Yes.” Most tellingly, the Defendants put to PW3 that if Hualang had not refused to pay, the Plaintiff would not even have done anything about the Hardware, to which the proposition was not effectively contradicted. [136] The timing demonstrates that the Plaintiff's challenge to delivery arose not from any genuine concern about the Hardware's whereabouts, but from a commercial dispute over S/N 02hWGNrqt0aco8Lbp3PFqQ payment. For almost one year from the Certificate of Completion in July 2021, the Plaintiff engaged in ongoing discussions with Hualang about Phases 2 and 3 of the Project, sent invoices for payment, and conducted business as usual without any suggestion that the Phase 1 delivery had not been completed. This protracted period of silence and normal commercial dealings is wholly inconsistent with a genuine belief that the Hardware had never been delivered. [137] The Plaintiff's almost two-year delay from the date of delivery in April 2021 until the commencement of these proceedings amounts to acquiescence which bars the present claim. In Everbest Media Sdn Bhd v Law Wogt Media Sdn Bhd & Anor [2022] MLJU 2673, the High Court held that: “The conduct or non-action/silent of the Plaintiff in forwarding his claim all those years amounted to acquiescence. It cannot be said he was honest in his pursuit for the claim when at any point in time during those years, he could have discussed this with the Defendant, particularly so when they remained business associates.” [138] Similarly, in Sri Datai Engineering Sdn Bhd v Daiho Corp, the Court of Appeal held that where a party remains silent for a prolonged period and fails to pursue its claims, such conduct may give rise to an estoppel preventing that party from later asserting those claims, as the silence and inaction are consistent with an inference that the party had been fully paid and had accepted that position through its subsequent conduct. S/N 02hWGNrqt0aco8Lbp3PFqQ [139] The Plaintiff in the present case had multiple opportunities during the period from April 2021 to March 2022 to investigate, verify, and raise concerns about delivery. The Plaintiff's own project team, including Puan Rosnaiza as project manager, remained employed and available throughout this period yet no action was taken. This inordinate delay and inexplicable silence amounts to acquiescence. [140] Accordingly, whilst I find as a matter of fact that discovery occurred in or around March 2022, the delay of nearly one year from the Certificate of Completion, the opportunistic trigger of that discovery following payment issues with Hualang rather than any genuine investigation of delivery matters, and the Plaintiff's failure to call material witnesses who could have provided direct evidence regarding the delivery and verification processes, collectively amount to both acquiescence and estoppel. The Plaintiff is estopped by its own conduct, having signed the Shinryu DO, issued the Certificate of Completion through its CEO, proceeded with the hire purchase agreement, allowed payment to the 1st Defendant, and remained silent for nearly two years, from now denying that delivery was completed. The doctrine of estoppel prevents a party from asserting a position contrary to its previous conduct where other parties have relied upon that conduct to their detriment, as established in Sri Datai Engineering Sdn Bhd v Daiho Corp. The Plaintiff's contemporary acceptance of delivery, coupled with its S/N 02hWGNrqt0aco8Lbp3PFqQ prolonged acquiescence and failure to produce material witnesses, precludes it from now challenging the completion of delivery. Issue 8: Personal Verification by Plaintiff [141] The Plaintiff submitted that it had no meaningful opportunity to personally verify whether the Hardware was actually delivered to the Maju Intan Power Plant. Its position was that site visits were not permitted for almost two years, which prevented the Plaintiff from sending its own personnel to confirm delivery. [142] The Plaintiff maintained that during this period, it relied entirely on the representations of the 1st Defendant. It asserted that it was only after approximately two years that it finally obtained confirmation directly from officers at the Maju Intan Power Plant that no economizer or equipment had ever been delivered or installed at the plant. [143] In relation to the fact that Hualang’s signatures appeared on all delivery and completion documents, the Plaintiff submitted that these signatures were not obtained by the Plaintiff itself, but rather by the 1st Defendant through its representative and witness, DW2 (Hoo Foong Yan). The Plaintiff emphasised that it did not procure Hualang’s endorsements and merely accepted the documents and representations provided by the 1st Defendant in good faith, only discovering the alleged non-S/N 02hWGNrqt0aco8Lbp3PFqQ delivery much later when it was finally able to verify matters directly with Maju Intan personnel. [144] The 1st Defendant submitted that the Plaintiff’s case on this issue was fatally undermined by contemporaneous evidence which the Plaintiff had glossed over, namely that delivery was confirmed not only by the 1st Defendant but by the Plaintiff itself through its Chief Executive Officer, Encik Ali bin Mustafa. [145] The 1st Defendant relied heavily on Ali bin Mustafa’s email dated 30.6.2021 at 7:40 pm, in which he expressly stated that he was aware of the situation and had personally carried out due verification, including clarification with both the supplier and Hualang as the customer, before instructing that acceptance proceed. The 1st Defendant submitted that this email conclusively demonstrated that the Plaintiff had conducted its own independent verification of delivery prior to acceptance. [146] The 1st Defendant further submitted that it could not be accused of fraud, dishonesty, or recklessness when it had invited the Plaintiff to verify delivery, and the Plaintiff’s CEO had in fact done so. It argued that the Plaintiff’s attempt to contradict this documentary evidence rested solely on oral testimony from PW1, PW2 and PW3, none of whom had direct personal knowledge of the delivery, with PW1 and PW2 having joined after the material time. S/N 02hWGNrqt0aco8Lbp3PFqQ [147] Most critically, the 1st Defendant submitted that PW3 had no authority to contradict what the Plaintiff’s CEO had personally verified and accepted. It argued that the Plaintiff’s failure to call Encik Ali bin Mustafa, despite listing him as a witness, together with its decision not to call other material witnesses including Encik Mohamad Tariq, Puan Rosnaiza, and Dato’ JP Tan, warranted an adverse inference and significantly weakened the Plaintiff’s case on Issue 8. [148] I find that the Plaintiff did make personal verification of the delivery through its Chief Executive Officer, Ali bin Mustafa. The evidence on this issue is clear and contemporaneous. On 30.6.2021 at about 7.40 pm, after receiving photographs from the 1st Defendant, Ali bin Mustafa emailed PW3, Shamsul Fadhli bin Anuari, indicating that acceptance should proceed, that he was fully aware of the situation, had carried out due verification of the relevant documents and site conditions with both the supplier and the customer, and expressed concern that uncertainties arising from the Movement Control Orders could delay the overall project. This email is unequivocal in its terms and constitutes contemporaneous documentary evidence of the highest order. [149] The significance of Ali bin Mustafa's email cannot be overstated. As the Chief Executive Officer of the Plaintiff, he occupied the most senior executive position in the company and was directly involved in the Project from its inception. His S/N 02hWGNrqt0aco8Lbp3PFqQ email explicitly confirmed that he had personally verified the delivery situation with both the 1st Defendant and with Hualang (the Plaintiff's customer). The reference to “Hualang as our customer on current site condition and related documentation” demonstrates that Ali bin Mustafa made specific enquiries about the site condition and obtained confirmation regarding the delivery. This was not a perfunctory or casual acknowledgment, but rather a deliberate and informed verification by the Plaintiff's most senior officer. The email was sent at 7.40 pm on 30.6.2021, after the 1st Defendant had provided photographs at 6.57 pm and 7.11 pm on the same day, demonstrating that the verification was conducted in response to specific queries about the delivery. [150] Following Ali bin Mustafa's email verification, the Plaintiff proceeded to act in a manner entirely consistent with acceptance of delivery. On 30.6.2021 at 9.49 pm, the Plaintiff signed the 1st Defendant's delivery note, albeit through another officer (Rizal bin Saari) rather than through Ali bin Mustafa himself. Subsequently, on 5.7.2021, the Plaintiff issued a packing list and a checklist for hardware and software implementation. On 6.7.2021, the Plaintiff issued a Certificate of Completion which certified that all works had been completed to the Plaintiff's satisfaction, with the completion date stated as 14.4.2021. All three documents (the packing list, checklist, and Certificate of Completion) were prepared by the Plaintiff and were subsequently S/N 02hWGNrqt0aco8Lbp3PFqQ endorsed by Hualang through Dato' JP Tan, the Group President of Hualang. This sequence of events demonstrates a coherent and consistent pattern of acceptance and acknowledgment of delivery by the Plaintiff. [151] The principle governing the interpretation of such contemporaneous documents is well-established. In Asiapools (M) Sdn Bhd v IJM Construction Sdn Bhd [2010] 3 MLJ 7 (Court of Appeal), it was held that where the terms of a written contract are clear and unambiguous, the court must ascertain the parties’ mutual intention solely from the contract itself and construe its terms as expressed, without resort to extrinsic evidence or interpretive principles to override the unequivocally stated intention of the parties. The court stated: “In construing a written contract the professed object of the court was to discover the mutual intention of the parties. The intention of the parties must be ascertained from the document itself. Thus, the parties themselves cannot give direct evidence to show that their intentions were at variance with the provisions of the contract document. The task of the court is quite simple namely, to construe the contractual term without any pre-conception as to what the parties intended. When the minds of the parties are expressed in an unambiguous manner, the principle of construction which are at best only a guide in the search for the intention of the parties cannot be relied upon to override the declared intention of the parties unequivocally expressed in the contract document.” [152] Applying this principle, Ali bin Mustafa's email dated 30.6.2021 and the subsequent delivery note and completion documents all express an unambiguous intention on the part S/N 02hWGNrqt0aco8Lbp3PFqQ of the Plaintiff to accept and acknowledge delivery. The Plaintiff cannot now rely on subsequent oral evidence to contradict what was unequivocally expressed in these The legal significance of delivery orders and certificates of completion in cases involving the sale and delivery of goods is firmly established. In Caltex Oil Malaysia Ltd v Classic Best Sdn Bhd & Ors [2007] 4 MLJ 772 (High Court), it was held: “In coming to a decision in cases involving goods sold and delivered such as in this case, I would place due emphasis on the written documents, namely the statement of accounts, invoices, delivery orders, delivery notes and the debit notes. These documents would collectively constitute a contract reduced into writing.” [153] Similarly, in Pernas Trading Sdn Bhd v Persatuan Peladang Bakti Melaka [1979] 2 MLJ 124 (Federal Court), the court stated: “There is however, no denial by the respondents that the goods were ordered by them and delivered to them. There is also no dispute as to the genuineness of the sales invoice and the delivery note on which the appellants' case is founded. In our view, the respondents' contention that goods were not ordered on their behalf must fail in view of the sales invoice and the delivery note.” [154] In the present case, the authenticity of the delivery note, packing list, checklist, and Certificate of Completion has not been disputed by the Plaintiff. These documents collectively S/N 02hWGNrqt0aco8Lbp3PFqQ establish that delivery was acknowledged and accepted by the Plaintiff. [155] The Plaintiff's case on personal verification is further undermined by the admissions made by PW3 in cross-examination. When questioned by counsel for the 1st Defendant regarding Ali bin Mustafa's email, PW3 conceded that based on the email, Ali bin Mustafa had verified with Hualang as the customer. The relevant exchange was as follows: “ECH: So I'm going to put to you that Encik Ali here has actually verified with the customer directly of the delivery. Agree or disagree? PW3: Uh, from the email... ECH: Agree or disagree? That's my, that's my question. PW3: Correct. From the email, agree.” [156] This admission by the Plaintiff's own witness confirms that Ali bin Mustafa had indeed conducted verification with Hualang regarding the delivery. PW3 further admitted that he himself did not personally verify with Hualang, thereby acknowledging that the verification was conducted at a higher level within the Plaintiff's organisation by the Chief Executive Officer. S/N 02hWGNrqt0aco8Lbp3PFqQ [157] The most significant evidential deficiency in the Plaintiff's case is the failure to call Ali bin Mustafa as a witness. Ali bin Mustafa was listed in the Plaintiff's own witness list but was not called to testify. He was the person who sent the verification email on 30.6.2021, who signed the Certificate of Completion on 6.7.2021, and who, as Chief Executive Officer, had the authority to make decisions regarding acceptance of delivery. His evidence would have been directly material to the question of whether the Plaintiff had made personal verification of delivery and whether the Plaintiff had genuinely accepted delivery at the material time. Under section 114(g) of the Evidence Act 1950, the court may presume that evidence which could be and is not produced would, if produced, be unfavourable to the person who withholds it. This principle was affirmed by the Federal Court in Mohammad Azanul Haqimi bin Tuan Ahmad Azahari v Timbalan Menteri Dalam Negeri, where it was held that the wilful withholding of available and material evidence entitles the court to presume such evidence would have been unfavourable to the withholding party. I draw an adverse inference against the Plaintiff for its failure to call Ali bin Mustafa as a witness. [158] Accordingly, I hold that the Plaintiff did verify delivery with Hualang through its Chief Executive Officer, Ali bin Mustafa, on 30.6.2021. The verification was explicitly stated in Ali bin Mustafa's contemporaneous email and was followed by the Plaintiff's execution of the delivery note on 30.6.2021 and the S/N 02hWGNrqt0aco8Lbp3PFqQ issuance of the packing list, checklist, and Certificate of Completion in early July 2021. All of these documents constitute valid acknowledgments of delivery by the Plaintiff. The Plaintiff's attempt to resile from these acknowledgments more than a year later cannot succeed in the face of such clear and contemporaneous documentary evidence, particularly where the Plaintiff has failed to call the key witness (Ali bin Mustafa) who was directly responsible for the verification and acknowledgment of delivery. Issue 9: Estoppel [159] Plaintiff’s The Plaintiff submitted that no estoppel arose, as there was neither delay nor acquiescence on its part. It argued that site visits were not permitted at the material time due to the COVID-19 pandemic and Movement Control Orders, which prevented the Plaintiff from verifying delivery through its own personnel. As a result, the Plaintiff contended that it had no practical choice but to rely on the representations of the 1st Defendant. [160] The Plaintiff further submitted that Hualang, through Dato’ JP Tan, repeatedly refused or delayed site visits, thereby preventing timely verification. It maintained that the alleged non-delivery only came to light almost two years later, when confirmation was finally obtained directly from officers at the Maju Intan Power Plant that no economiser or equipment had been delivered or installed. The Plaintiff emphasised that S/N 02hWGNrqt0aco8Lbp3PFqQ Hualang’s signatures on the delivery documents were procured by the 1st Defendant’s representative, not by the Plaintiff, and that the Plaintiff accepted those documents and representations in good faith, without knowledge of any alleged non-delivery. [161] The 1st Defendant submitted that the Plaintiff was clearly estopped by its own conduct from denying delivery. It argued that the Plaintiff took nearly two years from the alleged delivery in April 2021 to raise any complaint, amounting to inordinate delay and acquiescence. The 1st Defendant highlighted PW3’s admission under cross-examination that had Hualang paid the Plaintiff, no issue of non-delivery would have been raised, demonstrating that the claim was opportunistic. [162] The 1st Defendant pointed to a consistent pattern of conduct by the Plaintiff evidencing acceptance of delivery, including signing the delivery note on 30.6.2021, issuing a Certificate of Completion on 6.7.2021, preparing and signing packing lists and checklists, entering into the hire purchase agreement, making payments exceeding RM5 million, and allowing full payment of RM8.8 million to be released to the Third Party. It submitted that despite having multiple opportunities between April 2021 and March 2022 to investigate delivery, the Plaintiff remained silent, continued business dealings, and even discussed Phases 2 and 3 of the Project. In these circumstances, the 1st Defendant argued that all parties S/N 02hWGNrqt0aco8Lbp3PFqQ relied on the Plaintiff’s representations with serious financial consequences, and it would be unconscionable to permit the Plaintiff to now resile from its clear and contemporaneous acknowledgments of delivery. [163] The Plaintiff is estopped by its conduct from denying that delivery was completed. The principle of estoppel by conduct operates where a party has by its actions or representations led another to act to their detriment in reliance upon the position adopted. The contemporaneous documentary evidence in this case demonstrates a pattern of consistent acknowledgment of delivery through multiple signed documents executed over several months. On 15.4.2021, Hualang's Group President, Dato' JP Tan, signed the Shinryu DO acknowledging receipt. Later on 30.6.2021, the Plaintiff’s then CEO, Ali bin Mustafa, sent an email expressly confirming that he was aware of the situation and had personally verified that the documents were in order and that further clarification on the site conditions and related documentation had been obtained directly from both the supplier, the 1st Defendant and Hualang. [164] Following this verification, the Plaintiff signed the 1st Defendant's delivery note on 30.6.2021. The Plaintiff then prepared and issued three critical completion documents: first, a packing list dated 5.7.2021 signed by the Plaintiff's Encik Rizal bin Saari and acknowledged by Dato' JP Tan with Hualang's company stamp; second, a checklist for hardware S/N 02hWGNrqt0aco8Lbp3PFqQ and software implementation also dated 5.7.2021 similarly executed; and third, a Certificate of Completion dated 6.7.2021 signed by the Plaintiff's Chief Executive Officer Ali bin Mustafa stating “All works on the above contract have been completed on the actual completion date noted below, to my satisfaction in accordance with the specification, provisions, and conditions of the contract. Installed on 14 April 2021”, which document was endorsed by Dato' JP Tan with Hualang's company stamp on 7.7.2021. [165] The legal principles governing the evidential weight of delivery documentation are well-established. As held in Caltex Oil Malaysia Ltd v Classic Best Sdn Bhd & Ors, in coming to a decision in cases involving goods sold and delivered, due emphasis should be placed on the written documents, namely the statement of accounts, invoices, delivery orders, delivery notes, and debit notes, as these documents collectively constitute a contract reduced into writing. This principle finds further support in Pernas Trading Sdn Bhd v Persatuan Peladang Bakti Melaka, where the Federal Court held that there was no denial that the goods were ordered and delivered, nor any dispute as to the genuineness of the sales invoice and delivery note on which the claim was founded, and accordingly the contention that the goods were not ordered on behalf of the party concerned had to fail in light of those documents. S/N 02hWGNrqt0aco8Lbp3PFqQ [166] Similarly, in Sri Minal Construction Sdn Bhd v Mobil Oil Malaysia Sdn Bhd [2006] 1 MLJ 746 (High Court), it was held that where delivery orders were signed acknowledging delivery as ordered and invoices were not questioned, the party acknowledging receipt of consignments would be deprived of merit in any defence of non-delivery. In Golden Clay Industries Sdn Bhd v Petronas Dagangan Berhad [2017] MLJU 7 (High Court), the court emphasised that by signing and stamping a delivery note stating that goods were received in good condition and in sufficient amount, the recipient clearly acknowledged satisfaction with the delivery and could not subsequently dispute it. The Plaintiff's conduct in accepting and signing all delivery documentation without protest or qualification constitutes unequivocal acknowledgment. [167] The doctrine of estoppel is further fortified by the Plaintiff's subsequent actions demonstrating reliance upon the completion of delivery. Following the execution of the Certificate of Completion in July 2021, the Plaintiff proceeded to finalise the hire purchase agreement with the 2nd Defendant on 1.9.2021, providing therein for an irrevocable and unconditional bank guarantee to secure performance of its obligations. The Plaintiff's conduct was wholly consistent with acceptance that delivery had been properly completed. The hire purchase financing arrangement had been under negotiation since February-March 2021, with the 2nd Defendant giving its first approval on 18.3.2021, and the S/N 02hWGNrqt0aco8Lbp3PFqQ ultimate execution in September 2021 followed directly from the completion documentation issued in July 2021. The Plaintiff made payments totalling RM5,655,262.10 under this arrangement and issued the bank guarantee as required. The 1st Defendant, in reliance upon the Plaintiff's representations through these documents and the CEO's verification, released full payment of RM8,800,000.00 to the Third Party in three tranches. These actions by all parties demonstrate that the delivery documentation was accepted as genuine and acted upon with significant financial consequences. [168] The principle of estoppel arising from prolonged silence and acquiescence is directly applicable to the present circumstances. The Plaintiff maintained complete silence regarding any alleged non-delivery from April 2021 until December 2022, a period of almost two years. As PW3 admitted in cross-examination, the Plaintiff only raised the issue of alleged non-delivery in March 2022 after Hualang refused to make payment to the Plaintiff. PW3 testified: “Ia bermula apabila HRE gagal membayar invois Plaintif yang telah dikejar beberapa kali termasuk pengaturan untuk pemeriksaan tapak Power Plant tersebut sepanjang masa itu...” [169] In Everbest Media Sdn Bhd v Law Wogt Media Sdn Bhd & Anor, the court held that where a party’s prolonged conduct, non-action, or silence in pursuing a claim extended over many years, such inaction amounted to acquiescence, and it S/N 02hWGNrqt0aco8Lbp3PFqQ could not be said that the pursuit of the claim was honest when the matter could at any time have been raised and discussed, particularly where the parties remained business associates. [170] Similarly, in Sri Datai Engineering Sdn Bhd v Daiho Corp, where a party remained silent and failed to write in relation to its alleged claims despite regular inquiries, the court held that such silence and lack of pursuit were inconsistent with the existence of any outstanding entitlement, and were instead consistent with the assertion that full payment had already been made, with the payment, receipt of payment, and subsequent conduct operating to estop that party from advancing the later claim. [171] The totality of the Plaintiff’s conduct renders it unconscionable to now permit a denial of delivery. The Plaintiff executed formal completion documentation through its Chief Executive Officer, obtained the necessary acknowledgments from its customer Hualang, entered into substantial financing arrangements with the 2nd Defendant in reliance upon completed delivery, and allowed the 1st Defendant to make full payment to the Third Party. [172] Further, the Plaintiff maintained complete silence for almost two years and only raised the issue of non-delivery after payment difficulties arose with Hualang. Its present attempt to S/N 02hWGNrqt0aco8Lbp3PFqQ challenge delivery is therefore directly inconsistent with its own contemporaneous actions and representations. [173] Commercial certainty and fairness require that parties be held to the positions they have deliberately adopted through formal documentation and conduct, particularly where others have acted in reliance thereon to their detriment. To permit the Plaintiff to now resile from its clear acceptance of delivery would render the extensive documentation meaningless, undermine the integrity of commercial dealings, and unjustly impose loss on parties who acted in good faith upon the Plaintiff’s representations. [174] Accordingly, the principles of estoppel, acquiescence, and laches operate to preclude the Plaintiff from denying that delivery was completed. The Plaintiff is bound by its conduct in accepting delivery documentation without protest, proceeding with the bank guarantee and financing arrangements, and remaining silent for almost two years before raising any challenge. Analysis of Misrepresentation Claims Failure of Claims Predicated on False Premise [175] Having found as a matter of fact that proper delivery was made to the contractual recipient, Hualang, at the specified location of the Maju Intan Plant, the Plaintiff’s claims for both S/N 02hWGNrqt0aco8Lbp3PFqQ fraudulent and negligent misrepresentation fail at the threshold. Both causes of action are fundamentally premised on the assertion that no delivery occurred, a premise which has been rejected on the totality of the evidence. [176] The court has found that Shinryu delivered the Hardware to Hualang at the Maju Intan Plant on 14.4.2021. This finding is supported by the Shinryu delivery order dated 15.4.2021 signed by Dato’ JP Tan on behalf of Hualang, the photographs showing the Hardware at the site, and the Plaintiff’s own Chief Executive Officer’s email dated 30.6.2021, in which delivery was expressly verified with Hualang. [177] Further, the Plaintiff’s own contemporaneous documentation confirms acceptance of delivery. These include the delivery order signed by Rizal bin Saari on 30.6.2021, the certificate of completion signed by Ali bin Mustafa on 6.7.2021, and the accompanying packing list and checklist. Taken together, these documents demonstrate that the representations made by the 1st Defendant regarding delivery were accurate and truthful. [178] Where the factual foundation of the misrepresentation claim, namely that delivery did not occur, has been disproved, the claim cannot succeed regardless of whether it is framed as fraudulent or negligent misrepresentation. S/N 02hWGNrqt0aco8Lbp3PFqQ Deficiencies in Pleading Fraudulent Misrepresentation [179] Furthermore, the Plaintiff's pleadings regarding fraudulent misrepresentation are fatally defective for failure to plead sufficient particulars of the 1st Defendant's alleged fraudulent intent, knowledge of falsity, or reckless indifference to truth. Order 18 rule 12(1) of the Rules of Court 2012 mandates that every pleading shall contain the necessary particulars of any misrepresentation or fraud relied upon, and where a party alleges any fraudulent intention or other condition of mind, particulars of the facts on which the party relies must be contained in the pleading. [180] The High Court in Accolade Land Sdn Bhd v Mass Rapid Transit Corporation Sdn Bhd & Ors [2017] MLJU 1868 held that the Statement of Claim must show the nature and extent of each allegation, and that “the necessary particulars of the fraudulent intention relied on must also be contained in the pleading, in that it must be shown how D4 was actuated by a fraudulent representation” and further stated that “One cannot escape the conclusion after a scrutiny of the Statement of Claim, scanty and skimpy considering the seriousness of the misrepresentation, that all that was pleaded is a bare and general allegation of misrepresentation. The non particularization of a misrepresentation, whether fraudulent or negligent is fatal to the Plaintiff's case.” S/N 02hWGNrqt0aco8Lbp3PFqQ [181] In the present case, paragraph 19 of the Amended Statement of Claim merely states that “Defendan Pertama membuat Representasi tersebut dengan pengetahuan atau sepatutnya tahu bahawa Representasi tersebut adalah palsu dan tidak benar atau secara melulu dan tanpa mengendahkan sama ada Representasi tersebut benar atau palsu.” This constitutes nothing more than a general statement of misrepresentation without particularising how the 1st Defendant acted with knowledge of falsity, fraudulent intent, or reckless disregard for truth. [182] Notably, the wordings “fraud” or “deceit” do not appear in the pleadings, and no specific facts demonstrating dishonesty, intent to deceive, or recklessness were pleaded. Higher Evidentiary Burden Not Discharged [183] Without prejudice to the foregoing deficiency in pleadings, even if the court were to permit the Plaintiff to advance its case on fraudulent misrepresentation, the claim must fail on the evidence. The High Court in ABS Solution (S) Pte Ltd v Lim Teck Hoe & Anor [2024] MLJU 3491 explained: “Fraudulent misrepresentation undoubtedly imposes a higher evidentiary burden, as it requires the plaintiff to establish the defendant's state of mind. Specifically, the plaintiff must demonstrate that M Can, through D1, knowingly made false representations with the intent to induce the plaintiff to enter into the agreement.” S/N 02hWGNrqt0aco8Lbp3PFqQ [184] To succeed in a claim for fraudulent misrepresentation, the Plaintiff must establish five essential elements as set out in Top Glove Corporation Bhd & Anor v Low Chin Guan & Ors [2018] MLJU 1179 by the High Court, namely: a) there must be a representation of fact made by words or conduct; b) the representation must be made with knowledge that it is false, or it must be wilfully false or at least made in the absence of any genuine belief that it is true or recklessly without caring whether the representation is true or false; c) the representation must be made with the intention that it should be acted upon by the claimant in the manner which resulted in damage; d) it must be proved that the claimant acted upon the false statements; and e) it must be proved that the claimant has sustained damage by so doing. [185] In the present case, the Plaintiff has adduced no evidence whatsoever demonstrating that the 1st Defendant knew the representations regarding delivery were false, acted with intent to deceive, or made the representations with reckless S/N 02hWGNrqt0aco8Lbp3PFqQ disregard for their truth. The representations were based on confirmations received from Shinryu (the appointed supplier), Hualang (the recipient), and the Plaintiff's own CEO, and the 1st Defendant had paid RM8,800,000.00 to Shinryu for the supply and delivery. [186] It is wholly illogical to suggest that the 1st Defendant would fabricate or misrepresent delivery when it had substantial financial outlay dependent on actual delivery having occurred. Negligent Misrepresentation [187] Turning to the alternative claim for negligent misrepresentation, this claim also fails for multiple reasons. [188] First, even assuming arguendo that some duty of care existed (which I do not find), there was no breach of such duty because the representations about delivery were accurate and truthful. The evidence establishes that delivery was in fact made to Hualang at the Maju Intan Plant location as represented. The 1st Defendant's representations were based on confirmations from multiple independent sources and were corroborated by contemporaneous documentary evidence. S/N 02hWGNrqt0aco8Lbp3PFqQ [189] Second, the Plaintiff has failed to establish the existence of a special relationship giving rise to a duty of care in tort. At paragraph 20 of the Amended Statement of Claim, the Plaintiff pleaded that the 1st Defendant owed a duty of care because of the COVID-19 pandemic and Movement Control Orders then in place. However, as held in Bauer (Malaysia) Sdn Bhd v Hundred Vision Construction Sdn Bhd & Anor [2020] MLJU 543 by the High Court, “The Court would be slow to impose or identify a duty of care especially where the parties have allocated their risks and liabilities exhaustively especially with reference to standard form contracts used in their particular industry” and “As a matter of policy the Court would generally not impose or identify a duty of care in tort unless that duty is co extensive with its duties in contract between the party suing and the party being sued in the negligence claim.” [190] The existence of a pandemic and movement restrictions does not create a special relationship or duty of care in tort between commercial parties who have a contractual relationship. The Plaintiff's attempt in submissions to recharacterise the basis of the duty of care by reference to the transaction structure represents an impermissible departure from the pleaded case, and in any event fails to establish the requisite special relationship as explained in Sim Thong Realty Sdn Bhd v Teh Kim Dar [2003] 3 CLJ 227 by the Court of Appeal, where Gopal Sri Ram JCA (as he then was) stated: S/N 02hWGNrqt0aco8Lbp3PFqQ “If the misrepresentation was made negligently, the remedy of the representee lies in damages in the tort of negligence under the assumption of responsibility and reliance doctrine laid down in Hedley Byrne & Co Ltd v. Heller & Partners [1964] AC 465. In such a case the representee must plead and prove a special relationship giving rise to a duty of care as well as the other elements that go to constitute the tort of negligence.” Fundamental Failure to Establish Falsity of Representations [191] Most fundamentally, both the claims for fraudulent and negligent misrepresentation fail because the Plaintiff has not established that the representations made by the 1st Defendant were false, which is an essential element of any claim in misrepresentation. [192] In Sim Thong Realty, the Court of Appeal stated that the elements of an actionable misrepresentation are well settled, and that a misrepresentation is “an unambiguous, false statement of fact” which is addressed to the party misled and materially induces the contract. In the present case, the 1st Defendant represented that delivery had been made to Hualang at the Maju Intan Plant location. This representation was not false as delivery was in fact made as represented, as I have found on the evidence. [193] The Plaintiff's pleaded particulars of falsity at paragraph 18 of the Amended Statement of Claim rest on a conflation between MIBE (the corporate entity operating the plant) and Hualang (the contractual recipient). The contemporaneous S/N 02hWGNrqt0aco8Lbp3PFqQ documents clearly establish that Hualang, not MIBE, was the Plaintiff's customer and the intended recipient of the Hardware. [194] The representations regarding delivery were accurate, and the Plaintiff is estopped by its own conduct from now denying the truth of those representations. Accordingly, the Plaintiff has failed to establish the fundamental requirement that the representations were false, and both claims for fraudulent and negligent misrepresentation must be dismissed. Conclusion [195] For the foregoing reasons, I find that the Plaintiff's claim against the 1st Defendant for misrepresentation is wholly without merit and must be dismissed. The Plaintiff has fundamentally failed to establish the essential elements of its pleaded case. Most critically, the Hardware was in fact delivered to Hualang at the Maju Intan Plant location as contractually required, rendering the alleged representations by the 1st Defendant truthful rather than false. The Plaintiff is estopped from denying delivery by virtue of its own conduct and acquiescence. Accordingly, the Plaintiff's claim against the 1st Defendant is dismissed with costs. S/N 02hWGNrqt0aco8Lbp3PFqQ PLAINTIFF'S CLAIM AGAINST THE 2ND DEFENDANT The Plaintiff's Case [196] The Plaintiff's case against the 2nd Defendant is stated as below. [197] The financing arrangement between the Plaintiff and the 2nd Defendant arose from the Plaintiff's need to ease its financial burden when making payments to the 1st Defendant. Sometime in or around March 2021, the Plaintiff requested such an arrangement. For this purpose, the 1st Defendant introduced the 2nd Defendant into the parties' discussions. [198] Initially, the 2nd Defendant approved financing to the Plaintiff prior to the issuance of purchase orders for Phase 1, 2 and 3, subject to conditions including, inter alia, an irrevocable and unconditional corporate guarantee from the Plaintiff's holding company, FGV Holdings Berhad. However, sometime in or around June to July 2021, the Plaintiff and the 2nd Defendant agreed to a financing arrangement whereby: a) the Plaintiff would provide a bank guarantee as collateral instead of the corporate guarantee; b) the 2nd Defendant would issue a letter of undertaking to make full payment to the 1st Defendant for the sensor device upon completion of delivery; S/N 02hWGNrqt0aco8Lbp3PFqQ c) the Plaintiff would then pay the 2nd Defendant in instalments by entering into the HPA; and d) to effect the financing arrangement, the Plaintiff issued to the 2nd Defendant another purchase order no. 4300037508/2300020293. [199] On 25.8.2021, the Plaintiff cancelled its Purchase Order 4300037329/2300020035 to the 1st Defendant related to the three Economizer Section Modules. This purchase order was replaced with Purchase Order 4300037508/2300020293 to facilitate the financing arrangement with the 2nd Defendant. [200] On 1.9.2021, the Plaintiff entered into the HPA with the 2nd Defendant with reference number MYIS2100005 for the sum of RM10,158,824.00 payable in 36 monthly instalments of RM282,134.00. The Plaintiff provided a bank guarantee issued by Maybank Islamic Berhad with reference number 99140BGR638700 as collateral for the HPA. [201] The Plaintiff's case rests on the premise that it entered into the HPA with the 2nd Defendant in reliance on the Representation made by the 1st Defendant. The Plaintiff contends that had it known the true position regarding non-delivery of the Hardware to the Maju Intan Plant, it would not have proceeded with the HPA. The Plaintiff was unable to conduct physical verification due to COVID-19 pandemic conditions and Movement Control Orders in place at the S/N 02hWGNrqt0aco8Lbp3PFqQ material time, and therefore had no choice but to trust the 1st Defendant's representations about delivery. [202] Based on these alleged misrepresentations from the 1st Defendant, the Plaintiff signed off on the acceptance of the goods and proceeded with entering into the HPA and making payments towards the 2nd Defendant. The Plaintiff paid instalments totalling RM9,651,763.10 to the 2nd Defendant pursuant to the HPA. [203] The Plaintiff subsequently discovered that the Hardware was not delivered to the Maju Intan Plant. In an effort to mitigate its losses, the Plaintiff suspended further payments to the 2nd Defendant on 7.10.2022 pending further investigation into the HPA and to obtain legal and expert advice. [204] On 16.3.2023, the 2nd Defendant sent a letter to Maybank Islamic Berhad to claim RM5,655,262.10 from the bank guarantee provided by the Plaintiff, which sum was paid on 20.3.2023. [205] The Plaintiff's claim against the 2nd Defendant proceeds on three alternative bases. [206] First, the Plaintiff contends that because the Representation was false and untrue, the HPA should be declared void under section 19(1) of the Contracts Act 1950. The Plaintiff entered into the HPA believing that the Hardware had been delivered S/N 02hWGNrqt0aco8Lbp3PFqQ and installed at the Maju Intan Plant as represented by the 1st Defendant. [207] Second, the Plaintiff contends that the HPA is void for want of consideration. Under Article 1 of the HPA, the 2nd Defendant had an obligation to lease the Hardware to the Plaintiff. However, since the Representation was false and the Hardware was not delivered, the 2nd Defendant completely failed to perform its obligation under Article 1 of the HPA, thereby causing the agreed consideration to fail entirely. The Plaintiff paid RM9,651,763.10 for Hardware that was never leased to it in accordance with Article 1 of the HPA. Additionally, the Plaintiff paid RM5,655,262.10 pursuant to the bank guarantee claim by the 2nd Defendant. [208] Third, in the alternative, the Plaintiff contends that the 2nd Defendant has been unjustly enriched at the Plaintiff's expense. The 2nd Defendant obtained a right to claim RM10,158,824.00 from the Plaintiff, of which RM9,651,763.10 was paid, for Hardware that was not leased to the Plaintiff in accordance with Article 1 of the HPA. [209] Based on these alternative bases, the Plaintiff sought the following reliefs against the 2nd Defendant as pleaded in the Amended Statement of Claim. S/N 02hWGNrqt0aco8Lbp3PFqQ [210] Primarily, the Plaintiff sought a declaration that the HPA dated 1.9.2021, entered into between the Plaintiff and the 2nd Defendant, be declared void and invalid on the ground of total failure of consideration, or alternatively, a declaration that the 2nd Defendant had completely failed to discharge its obligations under the hire purchase agreement and that, by reason thereof, the agreement is void. [211] Consequent upon such declarations, the Plaintiff sought corresponding declarations that the bank guarantee issued by Maybank Islamic Berhad bearing reference number 99140BGR6383700, furnished pursuant to the Plaintiff’s instructions, be likewise declared void and invalid, either on the basis that it was provided as consideration for a hire purchase agreement which has totally failed in consideration, or alternatively because the 2nd Defendant had completely failed to discharge its obligations under the hire purchase agreement. [212] The Plaintiff further sought an order for repayment by the 2nd Defendant of the sum of RM9,651,763.10, representing instalments paid under the hire purchase agreement, together with general damages, aggravated damages, exemplary damages, and special damages quantified at RM198,331.96. S/N 02hWGNrqt0aco8Lbp3PFqQ The 2nd Defendant's Case [213] The 2nd Defendant's case in the Plaintiff's claim against the 2nd Defendant is stated as below. [214] The 2nd Defendant's position is straightforward: it was an innocent party serving merely as the financier for the Economizer to the Plaintiff. The 2nd Defendant provided financial services and disbursed money for the financing of the Economizer; hence, as the financier, the 2nd Defendant was entitled to be paid. [215] The 2nd Defendant contends that it thoroughly checked all proper documentation that came from the Plaintiff throughout the process and before the disbursement of financing. This documentation included, among others, confirmation by the Plaintiff's Chief Executive Officer, Encik Ali bin Mustafa, confirming on 30.6.2021 that delivery had been completed. Encik Ali specifically stated: “Please proceed with the acceptance. I duly aware of the situation and I did my due verifications on the followings: 1. All documents are satisfactorily in order.

Further clarifications being done personally with NEC as our supplier and Hualang as our customer on current site condition and related documentations.” S/N 02hWGNrqt0aco8Lbp3PFqQ [216] Having gone through their checklist and received proper documentation and confirmation from the Plaintiff's own Chief Executive Officer, the 2nd Defendant was obligated to release the financing. [217] The 2nd Defendant's submissions emphasise the timeline of events. Negotiations between the Plaintiff and the 2nd Defendant commenced as early as February 2021, with the 2nd Defendant giving its first approval on 18.3.2021, well before any alleged representations about delivery. Discussions regarding the HPA started in February 2021, and the 2nd Defendant spoke to a representative named Aiman, together with his financing team from the Plaintiff. This demonstrates that the financing arrangements were already in train before the alleged representations that form the basis of the Plaintiff's claim, and that the Plaintiff's financing team was actively negotiating with the 2nd Defendant independently. [218] The 2nd Defendant contends that valid consideration existed for the HPA in the form of financing services provided by the 2nd Defendant. The 2nd Defendant fulfilled its contractual obligations by disbursing the financing based on proper documentation and verification procedures that were in place. The fact that disputes may have arisen regarding delivery between other parties does not retrospectively negate the consideration provided at the time of contract formation on 1.9.2021. S/N 02hWGNrqt0aco8Lbp3PFqQ [219] The 2nd Defendant emphasises that all issues raised by the Plaintiff against it pertain solely to the consideration for the HPA. These issues require matters of delivery to be ascertained between the Plaintiff and the 1st Defendant, not the 2nd Defendant. The 2nd Defendant, as financier, had no direct involvement in the underlying transaction regarding delivery of Hardware and had no contractual relationship with Hualang or Shinryu. [220] The 2nd Defendant performed all obligations required under the HPA by providing the financing upon receipt of proper documentation confirming that conditions precedent had been satisfied. The validity and enforceability of the HPA should therefore be upheld, and the Plaintiff remains obligated to perform its payment obligations under the HPA. Issues [221] The following issues were submitted by the Plaintiff and 2nd Defendant relating to the Plaintiff's claim against the 2nd Defendant: a) Issue 10: Whether the Plaintiff entered into the HPA with the 2nd Defendant in reliance on any representations from the 1st Defendant? b) Issue 11: If the Representations made by the 1st Defendant were false and/or made negligently, is the S/N 02hWGNrqt0aco8Lbp3PFqQ HPA between the Plaintiff and the 2nd Defendant reference number MYIS2100005 dated 1.9.2021 void? c) Issue 12: Whether the HPA between the Plaintiff and the 2nd Defendant is void for want of consideration? Analysis and Findings Issue 10: Reliance on Representations [222] The Plaintiff submitted that it had no choice but to trust the 1st Defendant's representations that the goods were delivered to the correct location due to the COVID-19 pandemic and Movement Control Orders, and that based on these representations, the Plaintiff signed off on the acceptance of the goods and proceeded with the payment towards the 2nd Defendant. The Plaintiff's case rested on the contention that it was unable to conduct physical verification due to pandemic conditions and Movement Control Orders in place at the material time. The Plaintiff pleaded in paragraph 20 of its Amended Statement of Claim that the 1st Defendant had an obligation to act with all reasonable care and skill in ensuring the representation was true because of the COVID- 19 pandemic and Movement Control Orders enforced by the Malaysian Government together with the State Governments including the Selangor State Government and Perak State Government. The Plaintiff further contended that had it known the true position regarding non-delivery of the Hardware to S/N 02hWGNrqt0aco8Lbp3PFqQ the Maju Intan Plant, it would not have proceeded with entering the HPA with the 2nd Defendant. [223] The 1st Defendant submitted that no evidence was called by the Plaintiff to suggest that Ali bin Mustafa had relied on representations made by the 1st Defendant instead of his own personal verification which was recorded in his email dated 30.6.2021. The 1st Defendant emphasised that the purported reliance pleaded by the Plaintiff occurred after the Plaintiff's CEO, Ali bin Mustafa, had emailed on 30.6.2021 to inform the 1st Defendant that he had personally verified the delivery with Hualang. This direct verification from the actual recipient, a fact which the Plaintiff did not rebut with evidence, demonstrates that the Plaintiff did not rely on the 1st Defendant's representation regarding delivery but instead relied on its own due diligence and communication with Hualang. The 1st Defendant submitted that this was fatal to the Plaintiff's claim as reliance is an essential element that must be established in any claim for misrepresentation. Furthermore, the 1st Defendant submitted that the evidence established that the Plaintiff had already planned to enter the financing arrangement with the 2nd Defendant well before any alleged representations were made. [224] The 2nd Defendant submitted that it was an innocent party serving merely as the financier, and that it had thoroughly checked all proper documentation before disbursement, including confirmation by the Plaintiff's CEO that delivery had S/N 02hWGNrqt0aco8Lbp3PFqQ been completed. The 2nd Defendant emphasised that all issues raised by the Plaintiff against it pertained solely to the consideration for the HPA, which required matters of delivery to be ascertained between the Plaintiff and the 1st Defendant, not the 2nd Defendant. The 2nd Defendant, as financier, had no direct involvement in the underlying transaction regarding delivery of Hardware and had no contractual relationship with Hualang or Shinryu. The 2nd Defendant submitted that in order for the hire purchase to be confirmed, signed and the money subsequently disbursed, the 2nd Defendant had to be satisfied with the documentation provided by the Plaintiff, and DW3 testified that she was indeed satisfied by the documentation supplied by the Plaintiff. The 2nd Defendant also submitted that the hire purchase agreement was entered into with the belief that the economizer was delivered, as confirmed by DW3 during cross-examination by the Plaintiff's counsel. [225] Having considered the evidence and submissions from all parties, I find that the Plaintiff has failed to establish that it entered into the HPA with the 2nd Defendant in reliance on any representations from the 1st Defendant. The contemporaneous documentary evidence is particularly instructive on this issue. The email dated 30.6.2021 at 7:40 p.m. from Ali bin Mustafa, the Plaintiff's CEO, to Shamsul Fadhli bin Anuari (PW3) and copied to the 1st Defendant's representatives, clearly stated: “Please proceed with the acceptance. I duly aware of the situation and I did my due S/N 02hWGNrqt0aco8Lbp3PFqQ verifications on the followings: 1. All documents are satisfactorily in order. 2. Further clarifications being done personally with NEC as our supplier and Hualang as our customer on current site condition and related documentations. 3. Uncertainties of MCO and impact on delaying the overall project is quite worrying.” This contemporaneous email demonstrates unequivocally that the Plaintiff's CEO had conducted his own independent verification, including direct communication with both the 1st Defendant and, critically, with Hualang as the Plaintiff's customer, before proceeding with acceptance of the delivery. [226] The significance of Ali bin Mustafa's email cannot be overstated. PW3 admitted during cross-examination that Ali bin Mustafa had verified with Hualang directly regarding the delivery. When counsel for the 1st Defendant put to PW3 that Ali bin Mustafa had verified with the customer directly of the delivery, PW3 initially hesitated but ultimately agreed based on the email: “From the email, agree.” PW3 further confirmed that he himself had not personally verified with Hualang, stating “Yes, correct” when asked this question. This admission is fatal to the Plaintiff's case on reliance. It demonstrates that the decision to accept delivery and proceed with the HPA was not made in blind reliance on the 1st Defendant's representations but rather on the basis of the Plaintiff CEO's own verification processes. The email also reveals that Ali bin Mustafa was “duly aware of the situation” regarding the Movement Control Orders and uncertainties S/N 02hWGNrqt0aco8Lbp3PFqQ surrounding the pandemic, yet nonetheless authorised acceptance after conducting his due verifications. The Plaintiff subsequently acted upon this verification by signing the delivery note on 30.6.2021 and issuing completion documents in July 2021, all of which were consistent with acceptance of delivery based on independent verification rather than mere reliance on representations from the 1st Defendant. [227] The evidence further establishes that negotiations between the Plaintiff and the 2nd Defendant regarding the hire purchase financing commenced as early as February 2021, well before any of the alleged representations that form the basis of the Plaintiff's claim. DW3, Ms Yeo Heng Kooi, who was the Head of Sales of the 2nd Defendant and assisted the Plaintiff in processing the HPA, testified that discussions or negotiations in respect of the hire purchase agreement between the Plaintiff and the 2nd Defendant started “somewhere in February 2021”. The witness stated in her witness statement that in order for the 2nd Defendant to finance the Plaintiff for the Economiser Equipments supplied by the 1st Defendant, the 2nd Defendant had discussions with the Plaintiff on the financing terms and conditions as well as to gather information about the Plaintiff for processing and recommendation for approval. This timeline is significant as it demonstrates that the financing arrangements were initiated and under active discussion long before the events of June-S/N 02hWGNrqt0aco8Lbp3PFqQ July 2021 when the alleged representations regarding delivery were made. [228] The 2nd Defendant gave its first approval for the hire purchase financing on 18.3.2021, as confirmed by DW3 during cross-examination. The witness testified that prior to 18.3.2021, there were already application discussions and commercial terms being discussed between the parties. The initial approval was subject to the condition that a corporate guarantee be obtained from the Plaintiff's parent company, FGV Holdings Berhad. However, the Plaintiff indicated that it could not provide the corporate guarantee, which led to another round of negotiations. DW3 testified: “Um, the first approval, there was a condition that we needed a corporate guarantee. But the Plaintiff says that they can't give the corporate guarantee. So we went into another round of negotiations. And they changed the collateral.” It was at the Plaintiff's own request that the collateral was changed from a corporate guarantee to a bank guarantee. This renegotiation process occurred between March 2021 and the eventual signing of the HPA in September 2021. These facts demonstrate that the financing arrangements were actively being negotiated by the Plaintiff independently with the 2nd Defendant, and the eventual terms of the HPA resulted from the Plaintiff's own commercial decisions and negotiations rather than any reliance on representations from the 1st Defendant regarding delivery. S/N 02hWGNrqt0aco8Lbp3PFqQ [229] DW3 further testified during cross-examination that on the Plaintiff's side, there was a team of people negotiating directly with the 2nd Defendant. When asked who from the Plaintiff was negotiating the terms, DW3 responded: “We spoke to a guy named Aiman, together with his financing team.” This testimony establishes that the Plaintiff had a dedicated financing team, led by an individual identified as Aiman, who was actively engaged in direct negotiations with the 2nd Defendant regarding the commercial terms of the hire purchase arrangement. The existence of this financing team and their active involvement in negotiations further undermines the Plaintiff's contention that it entered into the HPA in reliance on representations from the 1st Defendant. The evidence shows instead that the Plaintiff's financing team was independently assessing the commercial viability of the hire purchase arrangement and negotiating its terms with the 2nd Defendant throughout the period from February 2021 onwards. The fact that these negotiations were ongoing well before the June-July 2021 period when delivery documentation was being processed demonstrates that the decision to enter into the HPA was not causally linked to any representations about delivery made by the 1st Defendant at that later time. [230] The Plaintiff's case on reliance is further undermined by its failure to call Ali bin Mustafa as a witness, despite having listed him on the Plaintiff's witness list. Ali bin Mustafa was the Plaintiff's CEO and a director of the company who signed S/N 02hWGNrqt0aco8Lbp3PFqQ the Certificate of Completion on 6.7.2021, who sent the crucial email on 30.6.2021 confirming his own verifications, and who signed the HPA on 1.9.2021 on behalf of the Plaintiff. He was thus the most material witness on the question of what the Plaintiff relied upon when entering into the HPA with the 2nd Defendant. PW3 testified that Ali bin Mustafa had been suspended and subsequently terminated from his position in 2021 or 2022 following the discovery of issues related to this case. The willful withholding of such a material witness entitles the court to draw an adverse inference under section 114(g) of the Evidence Act 1950. As established by the Federal Court in Mohammad Azanul Haqimi bin Tuan Ahmad Azahari v Timbalan Menteri Dalam Negeri, Malaysia & Ors, the withholding of available and material evidence entitles the court to presume that such evidence would have been unfavourable to the withholding party. In the present case, the inference to be drawn is that had Ali bin Mustafa been called to testify, his evidence would not have supported the Plaintiff's contention that it relied on the 1st Defendant's representations when entering the HPA, but would instead have confirmed that the Plaintiff acted on the basis of its own independent verification and assessment. [231] In conclusion, the totality of the evidence demonstrates that the Plaintiff did not enter into the HPA with the 2nd Defendant in reliance on any representations from the 1st Defendant. The Plaintiff's CEO conducted his own verification with Hualang before authorising acceptance of delivery, as S/N 02hWGNrqt0aco8Lbp3PFqQ evidenced by the contemporaneous email dated 30.6.2021. The negotiations between the Plaintiff and the 2nd Defendant commenced in February 2021 with first approval given on 18.3.2021, well before any alleged representations about delivery. The Plaintiff's dedicated financing team, led by Aiman, was actively and independently negotiating the terms of the hire purchase arrangement with the 2nd Defendant throughout this period. The eventual change from corporate guarantee to bank guarantee as collateral occurred at the Plaintiff's own request following renegotiation of terms. The Plaintiff's failure to call Ali bin Mustafa, the most material witness on this issue, warrants an adverse inference that his evidence would not have supported the claim of reliance. For all these reasons, the Plaintiff has failed to discharge its burden of proving that it entered into the HPA in reliance on representations from the 1st Defendant. This finding is fatal to the Plaintiff's claims against the 2nd Defendant, which are premised entirely on such alleged reliance. Issues 11 and 12: Voidability and Want of Consideration [232] In light of my findings that the representations made by the 1st Defendant concerning delivery of the Hardware were not false and that the Plaintiff did not rely on such representations in entering into the HPA with the 2nd Defendant, Issues 11 and 12 do not strictly arise for determination. The Plaintiff's claim that the HPA should be declared void under section 19(1) of the Contracts Act 1950 S/N 02hWGNrqt0aco8Lbp3PFqQ is premised entirely upon the existence of actionable misrepresentation and reliance thereon. Having found against the Plaintiff on both these fundamental elements, the consequential issues of voidability and want of consideration are rendered moot. Nevertheless, I address these issues for completeness, as they were extensively argued by the parties and form part of the relief sought by the Plaintiff. [233] The Plaintiff relied upon section 19(1) of the Contracts Act 1950, which provides: “when consent to an agreement is caused by coercion, fraud, or misrepresentation, the agreement is a contract voidable at the option of the party whose consent was so caused.” The Plaintiff contended that its consent to enter the HPA with the 2nd Defendant was caused by the 1st Defendant's misrepresentation regarding delivery of the Hardware to the Maju Intan Plant, and that it had elected to void the HPA. The Plaintiff submitted that the HPA is void for want of consideration since it paid the 2nd Defendant “for nothing” when the Hardware was allegedly not delivered to the designated location. However, given my findings that no false representations were made by the 1st Defendant, that the representations made were not made negligently or recklessly, and crucially that no reliance was established on any alleged representations in the Plaintiff's decision to enter the HPA, this argument based on section 19(1) must necessarily fail. The essential precondition for the operation of section 19(1), that consent was caused by misrepresentation, has not been established. The evidence S/N 02hWGNrqt0aco8Lbp3PFqQ demonstrates that the Plaintiff's Chief Executive Officer, Encik Ali bin Mustafa, conducted his own independent verification before confirming acceptance on 30.6.2021, and that negotiations for the financing arrangement with the 2nd Defendant had commenced as early as February 2021, well before any alleged representations about delivery. [234] Regarding the Plaintiff's alternative submission on want of consideration, I find that valid consideration existed for the HPA in the form of financing services provided by the 2nd Defendant. The applicable legal principles on burden of proof are well-established. In Sinnaiyah & Sons Sdn Bhd v Damai Setia Sdn Bhd [2015] 7 CLJ 584, the Federal Court held at paragraph [5]: “Briefly the former relates to the burden or obligation of proving a fact on the party who exerts the existence of any fact in issue and wished the court to believe in its existence-ss.102 and 103 of the Evidence Act 1950 [“the Act”]. The burden of proof of a party never shifts.” [235] This principle was reinforced in Tenaga Nasional Bhd v Perwaja Steel Sdn Bhd [1995] 4 CLJ 670 (High Court), where Low Hop Bing J held at page 672: “Under s. 101(1) of the Evidence Act 1950, whoever desires the Court to give judgment as to any legal right or liability, dependent on the existence of facts which he asserts, must prove that those facts exists. In other words, the Plaintiff must prove such facts as the Plaintiff desires the Court to give Judgment as to its right to claim against the Defendant or the Defendant's liability to pay. The burden of proof is on the Plaintiff; S/N 02hWGNrqt0aco8Lbp3PFqQ s.101(2). In order to succeed here, the Plaintiff must prove its claim affirmatively.” [236] The Plaintiff, which asserts want of consideration, bears the burden of proving this allegation. The Plaintiff has manifestly failed to discharge this burden. The evidence establishes that the 2nd Defendant provided valuable consideration in the form of financing services, which consideration was received and utilised by the Plaintiff under the HPA dated 1.9.2021. [237] The 2nd Defendant fulfilled its contractual obligations by disbursing the financing based on proper documentation and verification procedures that were thoroughly implemented. The 2nd Defendant's evidence, which I accept, demonstrates that it conducted comprehensive checks of all documentation received from the Plaintiff before releasing the financing. This documentation contained an unequivocal confirmation from the Plaintiff’s own CEO, Encik Ali bin Mustafa, who, in his email dated 30.6.2021, expressly acknowledged that he was fully aware of the situation, had personally carried out the necessary verifications, was satisfied that all documents were in order, and had himself sought and obtained further clarification from the 1st Defendant as the supplier and Hualang as the customer regarding the site conditions and related documentation. S/N 02hWGNrqt0aco8Lbp3PFqQ [238] Having received this express confirmation from the Plaintiff's highest executive officer, together with the Certificate of Acceptance and other supporting documentation, the 2nd Defendant was obligated to release the financing in accordance with the terms of the HPA. The fact that disputes subsequently arose between the Plaintiff and other parties regarding the precise location of delivery or the condition of the Hardware does not retrospectively negate the valid consideration provided by the 2nd Defendant at the time of contract formation on 1.9.2021. [239] The 2nd Defendant performed its role as financier in accordance with established commercial practice and its contractual obligations. The HPA remains a valid and binding contract between the parties, enforceable according to its terms in accordance with the principle of sanctity of contract. Conclusion [240] For the foregoing reasons, the Plaintiff's claim against the 2nd Defendant is hereby dismissed in its entirety with costs. The Plaintiff has failed to establish on a balance of probabilities any of the essential elements necessary to succeed in its claim. The sanctity of the validly executed HPA dated 1.9.2021 must be preserved. S/N 02hWGNrqt0aco8Lbp3PFqQ 2ND DEFENDANT'S COUNTERCLAIM AGAINST PLAINTIFF The 2nd Defendant's Case [241] The 2nd Defendant's counterclaim was grounded on Clause 27 ('Costs and Expenses') of the HPA, which provided that the Plaintiff shall fully indemnify the 2nd Defendant for costs and expenses incurred in enforcing the terms of the Agreement. The 2nd Defendant pleaded that as a result of the Plaintiff's action against it, it had incurred legal costs and expenses recoverable under this indemnity clause. Additionally, the 2nd Defendant claimed that the Plaintiff had refused or failed to pay monthly instalments from 7.10.2022 onwards (for October 2022 through March 2023), despite being sent a reminder notice in December 2022 warning that the bank guarantee would be called if payments continued to be withheld. Consequently, the 2nd Defendant sought: a) payment of legal costs; b) late payment interest at 18% totalling RM18,425.74 calculated from 7.10.2022 to 16.3.2023 under Clauses 17 and 20 of the HPA; c) payment of the balance amount (shortfall) of RM5,843.64 remaining under the HPA after the bank guarantee was called; and (d) general damages to be assessed. S/N 02hWGNrqt0aco8Lbp3PFqQ The Plaintiff's Case [242] The Plaintiff’s primary defence to the counterclaim was that the 2nd Defendant had no right to base any claim or counterclaim on the HPA dated 1.9.2021, on the footing that the HPA was invalid and void, having been procured through the 1st Defendant’s alleged fraudulent or negligent misrepresentation regarding delivery of the Hardware. [243] In the alternative, and without admitting the validity of the HPA, the Plaintiff challenged the counterclaim on several grounds. While admitting that Clause 27 of the HPA provides for an indemnity in respect of costs and expenses, the Plaintiff made no admission as to the quantum of legal costs allegedly incurred, and placed the 2nd Defendant under a strict burden of proof to substantiate those amounts with proper evidence. [244] The Plaintiff further denied that any balance remained owing after the bank guarantee was called, asserting that the 2nd Defendant had already received the full amount allegedly owed by calling on the bank guarantee in the sum of RM5,655,262.10. On this basis, the Plaintiff put the 2nd Defendant to strict proof of any alleged shortfall, including how such shortfall was calculated. S/N 02hWGNrqt0aco8Lbp3PFqQ [245] The Plaintiff also challenged the late payment interest claimed, arguing that the 2nd Defendant had failed to prove the basis of the interest computation or that such interest was properly chargeable in the circumstances. [246] Finally, in respect of general damages, the Plaintiff submitted that the 2nd Defendant had failed to plead sufficient particulars of any loss allegedly suffered or to establish any legal basis for such a claim. Court's Analysis and Findings [247] The 2nd Defendant bears the burden of proving its counterclaim on a balance of probabilities. As established by the Federal Court in Sinnaiyah & Sons Sdn Bhd v Damai Setia Sdn Bhd, the burden of proof of a party never shifts, and the party asserting a claim must prove the existence of facts upon which the claim is based. [248] In respect of the counterclaim for legal costs and general damages, the 2nd Defendant has failed to discharge this burden. No evidence whatsoever was adduced to establish the quantum of legal costs allegedly incurred in defending the Plaintiff's action. [249] The sole witness called by the 2nd Defendant, DW3 (Ms Yeo Heng Kooi), who testified as the Head of Sales of the 2nd Defendant, did not provide any testimony regarding the S/N 02hWGNrqt0aco8Lbp3PFqQ nature, extent or computation of the legal expenses allegedly incurred. More critically, DW3 did not tender any documentary evidence such as solicitors' invoices, fee statements, billing records, or any other documentation to substantiate the claimed legal costs. [250] Similarly, no evidence of any kind was presented regarding the existence, nature or quantum of general damages allegedly arising from these proceedings. [251] The Plaintiff, in its Reply and Defence to Counterclaim, specifically placed the 2nd Defendant on strict proof as to quantum, making clear that while the existence of Clause 27 of the HPA was admitted, no admission was made regarding the quantum of legal costs allegedly incurred. [252] Accordingly, the counterclaim lacks the evidential foundation necessary to support the relief sought. [253] Upon examination of the 2nd Defendant's written submissions and the evidence adduced at trial, it becomes apparent that the 2nd Defendant's efforts were almost entirely directed towards defending against the Plaintiff's claim rather than towards establishing the merits of its own counterclaim. [254] The 2nd Defendant's submissions focused comprehensively on challenging the validity of the Plaintiff's allegations concerning fraudulent or negligent misrepresentation, arguing S/N 02hWGNrqt0aco8Lbp3PFqQ that the HPA was valid and binding, and that the Plaintiff had entered into the HPA independently without reliance on any representations from the 1st Defendant. [255] Whilst these defensive arguments were extensively developed, the 2nd Defendant advanced no substantive argument whatsoever regarding the legal basis for recovery under its counterclaim, nor did it address the quantum of damages claimed. [256] The counterclaim, as pleaded, sought relief under Clause 27 (“Costs and Expenses”) of the HPA dated 1.9.2021, which provided that “the Plaintiff shall fully indemnify the 2nd Defendant for costs and expenses incurred in enforcing the terms of the Agreement”. However, no analysis was offered as to how legal costs incurred in defending civil proceedings constitute costs incurred “in enforcing the terms of the Agreement”. [257] The counterclaim also sought general damages to be assessed, but again without any evidential or legal foundation being laid for such a claim. [258] More fundamentally, the 2nd Defendant has not established any recognised legal basis upon which legal costs incurred in defending civil proceedings may be recovered as substantive damages from an opposing party. S/N 02hWGNrqt0aco8Lbp3PFqQ [259] The Plaintiff, in paragraph 10 of its Reply and Defence to Counterclaim, expressly contended that the counterclaim disclosed no reasonable cause of action for recovering legal costs incurred in defending civil proceedings as substantive damages rather than through the ordinary costs regime, and reserved the right to strike out the counterclaim under Order 18 Rule 19(1)(a) of the Rules of Court 2012 on the ground that it disclosed no reasonable cause of action. [260] This fundamental challenge to the juridical basis of the counterclaim was never answered by the 2nd Defendant. The ordinary rule in civil litigation is that costs follow the event and are awarded by the court pursuant to its inherent jurisdiction and the Rules of Court 2012, not as a head of substantive damages. [261] The 2nd Defendant has pleaded no cause of action in tort, contract or statute that would support the recovery of its legal expenses as damages. Having characterised itself throughout the proceedings as a financier with limited involvement in the underlying transaction concerning the supply and delivery of hardware, and having taken the position that it merely acted on proper documentation provided by the Plaintiff's own CEO in entering into the HPA, the 2nd Defendant has not demonstrated how it suffered actionable loss or damage for which legal costs may be recovered as substantive damages rather than being addressed through the ordinary taxation of costs regime. S/N 02hWGNrqt0aco8Lbp3PFqQ [262] For the foregoing reasons, the 2nd Defendant's counterclaim is dismissed with costs. The 2nd Defendant has failed to adduce any evidence to prove the quantum of legal costs allegedly incurred or the existence and quantum of general damages claimed. No substantive legal argument was advanced to establish a juridical basis for the recovery of defensive legal costs as damages. The counterclaim is accordingly unsustainable both on the evidence and on the law. THE 1ST DEFENDANT'S THIRD PARTY CLAIM Issues [263] The following issues were submitted by the parties relating to the 1st Defendant’s claim against the Third Party: a) Issue 1: Whether the Third Party had in fact delivered the Hardware to Maju Intan Plant according to Shinryu's DO; b) Issue 2: Whether the Third Party had in fact procured the signature of the representative of Hualang which appeared on Shinryu's DO; c) Issue 3: If this court finds that the Hardware was not delivered to Maju Intan Plant by the Third Party, whether or not the Third Party shall be liable to return S/N 02hWGNrqt0aco8Lbp3PFqQ the sum of RM8,800,000.00 paid by the 1st Defendant to the Plaintiff and/or to indemnify the 1st Defendant and/or to contribute to the Plaintiff’s claim against the 1st Defendant in the event that the Plaintiff’s claim should allowed. The 1st Defendant's Case Against Shinryu [264] The 1st Defendant's Case is stated as below. [265] The 1st Defendant appointed Shinryu as the delivery partner for the first phase of the Project concerning the design and supply of the complete fuel handling system, Economizer Section Modules, Economizer Tower and Casing to boilers at the Maju Intan Plant. [266] On 17.3.2021, Shinryu issued a quotation to the 1st Defendant in the sum of RM8,800,000.00 for the design and supply of the Hardware to the Maju Intan Plant located at Lot 21570, Kampung Selabak, 36000 Teluk Intan, Perak. [267] On 15.4.2021, Shinryu issued the Shinryu DO to the 1st Defendant confirming delivery of the Hardware to the Maju Intan Plant with a delivery date of 14.4.2021. The Shinryu DO bore the signature of Dato' JP Tan, Group President of Hualang, and was stamped with Hualang's company stamp, purportedly confirming that the Hardware had been received in good condition. S/N 02hWGNrqt0aco8Lbp3PFqQ [268] Based on Shinryu's delivery documentation and representation, the 1st Defendant acted in reliance and informed the Plaintiff that delivery had been made. The 1st Defendant then proceeded to pay Shinryu the entire sum of RM8,800,000.00 in three tranches: RM3,000,000.00 on 3.9.2021, RM3,000,000.00 on 10.9.2021, and RM2,800,000.00 on 15.9.2021. [269] Subsequently, on 20.3.2023, the Plaintiff commenced proceedings against the Defendants by Writ and Statement of Claim, alleging that the Hardware was not delivered to the Maju Intan Plant. [270] On 3.1.2024, the 1st Defendant filed a Statement of Claim against Shinryu as a third party, seeking contribution or indemnity in the event that the 1st Defendant is found liable to the Plaintiff. [271] The 1st Defendant's position was that Shinryu was the party responsible to deliver the Hardware and had received full payment for the same. The 1st Defendant advanced two principal grounds for relief against Shinryu. [272] First, if the court finds that delivery was not made contrary to Shinryu's position, Shinryu would be in breach of its fundamental contractual obligation to deliver the Hardware and unjustly enriched by receiving payment for services it did not perform. Under such circumstances, an order for the S/N 02hWGNrqt0aco8Lbp3PFqQ return of the sum of RM8,800,000.00 should be made against Shinryu. [273] Second, if the court finds the 1st Defendant liable to the Plaintiff for the alleged non-delivery, the 1st Defendant is entitled to seek full indemnity from Shinryu for any award of damages and costs payable to the Plaintiff. The 1st Defendant's position was that it had no operational role in the logistics or delivery of the Hardware and merely relayed to the Plaintiff what it was led to believe was accurate information, based on Shinryu's representation and delivery documentation which appeared regular on its face. As such, the 1st Defendant was not the root cause of any delivery failure, nor did it make any false statement with knowledge or intent. Its liability, if any, was entirely derivative of Shinryu's breach. [274] The 1st Defendant contended that in respect of the delivery of the Hardware, it had acted throughout as an intermediary in good faith. The entire cause of the 1st Defendant's liability to the Plaintiff, if established, stemmed from Shinryu's breach of its delivery obligation and its provision of misleading documentation. [275] The 1st Defendant prayed for reliefs premised on the contingency that this court gives judgment against the 1st Defendant in favour of the Plaintiff. S/N 02hWGNrqt0aco8Lbp3PFqQ [276] The primary relief sought was an order that Shinryu contribute fully or indemnify the 1st Defendant fully, or to such extent as this court deems just and equitable, against any amounts awarded in the Plaintiff's claim. [277] In the alternative, the 1st Defendant sought an order that Shinryu return the sum of RM8,800,000.00 which the 1st Defendant had paid to Shinryu. [278] The 1st Defendant further sought an order that Shinryu pay the costs of the action and any costs for proceedings relevant to the action, including the costs of the third party proceedings, together with such other reliefs as this court deems fit and proper. Shinryu's case [279] Shinryu's case in the 1st Defendant's Third Party claim is stated as below. [280] Shinryu maintained that it had fully complied with all requirements of the Shinryu DO and duly performed its contractual obligations by delivering the Hardware to the Maju Intan Plant as stipulated. [281] Shinryu's primary position was that at all times, the 1st Defendant had full knowledge of the delivery and never disputed, protested, or complained to Shinryu in respect of S/N 02hWGNrqt0aco8Lbp3PFqQ the Shinryu DO. This position was reinforced by the fact that the 1st Defendant paid the entire sum of RM8,800,000.00 to Shinryu. [282] Furthermore, Shinryu asserted that it was appointed by the 1st Defendant without any involvement from the Plaintiff, and there was no contractual relationship between the Plaintiff and Shinryu. The subject matter of the civil suit concerned material disputes of facts concerning the supply and delivery of the Hardware, and this action was confined to matters arising from the appointment of the 1st Defendant and Shinryu. [283] Shinryu raised the principles of estoppel, laches, and acquiescence as bars to the 1st Defendant's claims. Shinryu contended that the 1st Defendant was not a passive financier but played an active role in coordinating delivery with Shinryu. If the 1st Defendant had any doubts, it could have arranged for site confirmation or withheld payment, but it chose not to do so. The 1st Defendant's own internal documents showed acceptance of the delivery. [284] On the issue of delay and inaction, Shinryu submitted that for nearly two years, the 1st Defendant took no steps to question the delivery. In fact, the 1st Defendant acted consistently with an understanding that the transaction was complete. Such prolonged silence and inaction amounted to acquiescence, S/N 02hWGNrqt0aco8Lbp3PFqQ especially when the party had every opportunity to verify its position. [285] Shinryu further contended that the 1st Defendant's reliance on indemnity and unjust enrichment principles was misplaced. These remedies require proof of breach or failure of consideration, but the delivery was made and the 1st Defendant paid voluntarily based on documentation it accepted. Shinryu had delivered the goods as instructed, provided all documentation, and was paid after the 1st Defendant conducted its own verification. There was no concealment, no misrepresentation, and no fiduciary or contractual duty owed by Shinryu to the 1st Defendant beyond completing the delivery. [286] Shinryu's role was purely logistical as delivery was made, received, and acknowledged at the site. If the goods were later removed or went missing, such loss arose from events beyond Shinryu's control. Absent a clear breach or fraud, indemnity could not be sustained. The facts demonstrated confirmed delivery, clean documentation, and delayed protest, which did not support a restitutionary claim. [287] Shinryu's position was that the 1st Defendant's third party claim was fundamentally misconceived. The 1st Defendant accepted delivery documentation from Shinryu without protest, verified and forwarded the same to the Plaintiff and the 2nd Defendant, and the 1st Defendant's attempt to now S/N 02hWGNrqt0aco8Lbp3PFqQ place liability on Shinryu contradicted its earlier acknowledgements regarding the completion of delivery and payment. Court's Analysis and Findings [288] Shinryu, as defendant in the third party action, maintained a comprehensive defence against the 1st Defendant's claims. Shinryu asserted that it had duly performed its contractual obligations by delivering the Hardware to the Maju Intan Plant as stipulated in the Shinryu DO dated 15.4.2021. Shinryu's position, as pleaded in its Third Party Defence dated 19.1.2024, was unequivocal: “Pihak Ketiga telah memenuhi kesemua peruntukan Shinryu DO.” This assertion was supported by TPW1, Muhamad Zaidi bin Abdullah, who provided direct testimony that the equipment was physically delivered to Hualang's site at Maju Intan, that the Shinryu DO was signed by Dato' JP Tan in his presence, and that photographic evidence was obtained. Shinryu maintained throughout that there was no concealment, misrepresentation, or breach of any fiduciary or contractual duty on its part. [289] Shinryu further contended that the 1st Defendant's conduct demonstrated full knowledge and acceptance of the delivery. Shinryu emphasised that at all times, “the Defendant has full knowledge of the above and has never disputed, protested and/or complained to a Third-Party in respect of Shinryu DO.” S/N 02hWGNrqt0aco8Lbp3PFqQ This position was reinforced by the undisputed fact that the 1st Defendant paid the entire sum of RM8,800,000.00 to Shinryu, which payment was made only after the 1st Defendant conducted its own verification processes. The evidence demonstrated that the 1st Defendant received Shinryu's delivery documentation in April 2021, generated its own delivery order on 28.6.2021, and proceeded to make payment to Shinryu in tranches between 3.9.2021 and 10.9.2021. Shinryu submitted that this pattern of conduct, namely verification, documentation, and payment, was wholly inconsistent with any allegation that the 1st Defendant had been misled or that delivery had not occurred as represented. [290] On the critical issue of delay and acquiescence, Shinryu raised substantial defences based on the 1st Defendant's prolonged silence and inaction. The evidence established an incontrovertible timeline: delivery was made on 14.4.2021, the 1st Defendant verified and accepted delivery by 28.6.2021, payment was made in full by September 2021, yet the first complaint of non-delivery did not emerge until December 2022 when the Plaintiff suspended payments to the 2nd Defendant. The police report which triggered the allegations was not lodged until 20.3.2023. This represented a period of nearly two years during which the 1st Defendant took no steps whatsoever to question the delivery, notwithstanding that it had every opportunity to arrange site confirmation or withhold payment had it harboured any doubts. Shinryu invoked the principles of estoppel, laches, S/N 02hWGNrqt0aco8Lbp3PFqQ and acquiescence as complete bars to the 1st Defendant's belated claims. As the Court of Appeal held in Sri Datai Engineering Sdn Bhd v Daiho Corp, prolonged silence where a party has every opportunity to verify its position amounts to acquiescence and precludes subsequent challenge. [291] The characterisation of the third party action as requiring dismissal flows from the fundamental principle that third party proceedings are contingent in nature and derive their relevance from the success of the main claim. As the High Court explained in Syarikat Duasama Sdn Bhd v Abdul Aziz bin Ibrahim (t/a Radiant Star Enterprise) (Tiong Sing Trading Co Sdn Bhd & Anor, third parties) [2018] MLJU 5 at paragraph 49, a third party may be ordered to indemnify or make contribution in respect of the defendant's liability in three circumstances: [292] In Malayan Banking Bhd v Sepakat Computer Consultant Sdn Bhd & Ors (Intercontinental Nominees Sdn Bhd & Anor, third party) [2012] 8 MLJ 660 the High Court held that where the relationship between parties or the surrounding circumstances give rise in law or in equity to an obligation on one party to indemnify another, a right of indemnity may arise independently of any express or implied contract. S/N 02hWGNrqt0aco8Lbp3PFqQ [293] However, these remedies are premised upon the defendant having established liability to the plaintiff in the main action. [294] The contingent nature of third party proceedings means that where the main claim is dismissed on its merits, as opposed to dismissal on purely procedural or technical grounds, the question of indemnity, contribution, or restitution from the third party does not arise. This principle is fortified in the present case by Shinryu's substantial independent defences. The 1st Defendant's conduct over nearly two years, namely accepting delivery documentation without protest, verifying the delivery, forwarding confirmation to both the Plaintiff and the 2nd Defendant, paying Shinryu in full, and maintaining complete silence until allegations emerged in late 2022, gave rise to valid defences of acquiescence and estoppel. The principles articulated in Everbest Media Sdn Bhd v Law Wogt Media Sdn Bhd & Anor are directly applicable, in that prolonged conduct, non-action, or silence in pursuing a claim over many years amounts to acquiescence, and such inaction undermines the honesty of the claim where the matter could at any time have been raised and discussed with the other party. [295] Justice requires dismissal of the third party claim both on contingency grounds and on the merits of Shinryu's defences. S/N 02hWGNrqt0aco8Lbp3PFqQ [296] The 1st Defendant's reliance on principles of unjust enrichment and indemnity must also fail on their merits. The 1st Defendant submitted that if delivery was not made, Shinryu would be unjustly enriched and should return the RM8,800,000.00 paid, citing Panasonic Appliances Air-Conditioning (M) Sdn Bhd v Top Square Sdn Bhd & Ors (Shanmugam a/l Ramasamy & Ors, third parties) [2021] 8 MLJ 363 (High Court) at paragraph 71, wherein the High Court held that a third party is not entitled to retain windfall gain. [297] However, the present case is wholly distinguishable. Here, Shinryu consistently maintained that delivery was made and received, supported by contemporaneous documentation and direct testimony. The 1st Defendant paid voluntarily after conducting its own verification processes, as evidenced by DW1's testimony that the 1st Defendant's internal documents showed acceptance of delivery. There was no concealment, no misrepresentation, and no breach of duty by Shinryu. As the Court of Appeal emphasised in Sabarudin bin Othman & Anor v Malayan Banking Bhd [2018] MLJU 304 at paragraph 26, indemnity rights arise where a party relies on a third party's representation to its detriment but here, the evidence demonstrates that the 1st Defendant conducted its own verification rather than relying blindly on representations. S/N 02hWGNrqt0aco8Lbp3PFqQ [298] Given the court's definitive finding that the Plaintiff's claim against the 1st Defendant fails on its merits, and considering Shinryu's substantial defences including the 1st Defendant's acceptance of delivery, payment in full after verification, and prolonged silence of nearly two years before any challenge was raised, the question of indemnity, contribution, or restitution from Shinryu becomes entirely moot. The 1st Defendant seeks to recover from Shinryu amounts for which it bears no liability to the Plaintiff. As the High Court recognised in Benzteel Sdn Bhd v United Trade Arena (M) Sdn Bhd & Anor Appeal [2011] 1 LNS 1185 at paragraphs 11.4.12-11.4.13, indemnity is appropriate where the defendant's liability is derivative of the third party's breach, but this presupposes that the defendant has established liability in the first instance. No such liability has been established here. The principles of estoppel, laches, and acquiescence applicable against the 1st Defendant, combined with the dismissal of the main claim on its merits, compel the conclusion that the third party claim must be dismissed. Accordingly, the 1st Defendant's third party claim against Shinryu is dismissed with no order as to costs. ORDERS [299] Accordingly, I make the following orders: a) The Plaintiff's claims against the 1st Defendant and 2nd Defendant are hereby dismissed with costs. S/N 02hWGNrqt0aco8Lbp3PFqQ b) The 2nd Defendant's counterclaim against the Plaintiff is dismissed with costs. c) The 1st Defendant's third party claim against the Third Party is dismissed with no order as to costs. d) The Plaintiff shall pay costs in the sum of RM30,000.00 to the 1st Defendant, subject to allocatur. e) The Plaintiff shall pay costs in the sum of RM20,000.00 to the 2nd Defendant, subject to allocatur. f) The 2nd Defendant shall pay costs in the counterclaim in the sum of RM5,000.00 to the Plaintiff, subject to allocatur. 12 January 2026 ATAN MUSTAFFA YUSSOF AHMAD Judge Kuala Lumpur High Court (Commercial Division) S/N 02hWGNrqt0aco8Lbp3PFqQ Counsel: For the Plaintiff: Muhammad Firdaus bin Danial Tan (Messrs. Fahri, Azzat & Co.) For the First Defendant: Eddie Chuah with Nabilah Mohd Izhar (Messrs. Wong & Partners) For the Second Defendant: Lim Kim Jim (Messrs. Lim, Phua & Noraini) For the Third Party: Siet Yi Heng (Messrs. Au & Partners) S/N 02hWGNrqt0aco8Lbp3PFqQ

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Malaysian judgment

Case metadata

Court: High Court of Malaysia
Decision date: 22 Aug 2025
Case number: WA-22NCC-139-03/2023
Coram: YA Tuan Atan Mustaffa Yussof Ahmad
Practice area: CONTRACT LAW: Misrepresentation – Fraudulent misrepresentation – Negligent misrepresentation – Elements required to establish misrepresentation – Whether representations made regarding delivery of goods – Whether representations false – Whether made with knowledge of falsity or recklessly without caring whether true or false – Whether made with intent to induce reliance – Whether plaintiff relied on representations – Whether plaintiff suffered damage – Whether duty of care existed in making representations – Whether special relationship giving rise to duty of care – Burden of proof on party alleging misrepresentation – Whether contemporaneous documentary evidence contradicts claim of misrepresentation CONTRACT LAW: Hire purchase agreement – Voidability – Section 19(1) Contracts Act 1950 – Whether consent to agreement caused by misrepresentation – Whether agreement voidable at option of party whose consent caused by misrepresentation – Want of consideration – Total failure of consideration – Whether valid consideration existed in form of financing services – Whether consideration failed where underlying goods allegedly not delivered – Whether hire purchase agreement void for failure of consideration CONTRACT LAW: Sale and delivery of goods – Delivery obligations – Contractual recipient versus delivery location – Whether delivery to be made to specific corporate entity or to customer at specified location – Whether delivery made to proper contractual party – Authority to acknowledge receipt – Application of Turquand rule (indoor management principle) – Whether signature and company stamp entitle parties to assume proper corporate authority – Effect of delivery documentation signed by authorised representative – Acknowledgment of receipt – Whether delivery orders and certificates of completion constitute binding acknowledgments EVIDENCE: Burden of proof – Section 101 Evidence Act 1950 – Burden on plaintiff to prove facts in issue – Whether burden discharged on balance of probabilities – Documentary evidence versus oral evidence – Contemporaneous documents to be preferred over subsequent recollections – Whether oral evidence contradicting contemporaneous documents admissible – Hearsay evidence – Section 60(1) Evidence Act 1950 requirement for direct evidence – Whether witnesses had personal knowledge of facts – Whether testimony based on direct observation – Adverse inference – Section 114(g) Evidence Act 1950 – Whether failure to call material witness warrants adverse inference – Whether evidence withheld would have been unfavourable to withholding party EQUITY: Estoppel by conduct – Acquiescence – Laches – Whether party estopped from denying delivery by own contemporaneous conduct – Prolonged silence and inaction – Whether delay in raising complaint amounts to acquiescence – Whether party remained silent for extended period despite opportunities to verify position – Effect of signing delivery notes and certificates of completion – Whether party can resile from clear acknowledgments in formal documentation – Commercial certainty and fairness – Whether unconscionable to permit denial of delivery after others acted in reliance TORT: Negligent misrepresentation – Whether special relationship existed giving rise to duty of care – Whether duty of care arose from commercial relationship – Whether duty of care imposed in tort where parties have contractual relationship – Whether COVID-19 pandemic and Movement Control Orders created duty to act with reasonable care in confirming delivery – Whether breach of duty established – Whether causation and damage proven RESTITUTION: Unjust enrichment – Whether party unjustly enriched by receiving payment for services not performed – Whether consideration failed – Total failure of consideration – Whether enrichment at expense of plaintiff – Whether retention of payment unconscionable CIVIL PROCEDURE: Third party proceedin
Version: Alasan Penghakiman 1
Published: 13 Jan 2026
Source ID: 185668d3-eada-46b7-9ca3-c2dba773c5a9

Catchwords

CONTRACT LAW: Misrepresentation – Fraudulent misrepresentation – Negligent misrepresentation – Elements required to establish misrepresentation – Whether representations made regarding delivery of goods – Whether representations false – Whether made with knowledge of falsity or recklessly without caring whether true or false – Whether made with intent to induce reliance – Whether plaintiff relied on representations – Whether plaintiff suffered damage – Whether duty of care existed in making representations – Whether special relationship giving rise to duty of care – Burden of proof on party alleging misrepresentation – Whether contemporaneous documentary evidence contradicts claim of misrepresentation CONTRACT LAW: Hire purchase agreement – Voidability – Section 19(1) Contracts Act 1950 – Whether consent to agreement caused by misrepresentation – Whether agreement voidable at option of party whose consent caused by misrepresentation – Want of consideration – Total failure of consideration – Whether valid consideration existed in form of financing services – Whether consideration failed where underlying goods allegedly not delivered – Whether hire purchase agreement void for failure of consideration CONTRACT LAW: Sale and delivery of goods – Delivery obligations – Contractual recipient versus delivery location – Whether delivery to be made to specific corporate entity or to customer at specified location – Whether delivery made to proper contractual party – Authority to acknowledge receipt – Application of Turquand rule (indoor management principle) – Whether signature and company stamp entitle parties to assume proper corporate authority – Effect of delivery documentation signed by authorised representative – Acknowledgment of receipt – Whether delivery orders and certificates of completion constitute binding acknowledgments EVIDENCE: Burden of proof – Section 101 Evidence Act 1950 – Burden on plaintiff to prove facts in issue – Whether burden discharged on balance of probabilities – Documentary evidence versus oral evidence – Contemporaneous documents to be preferred over subsequent recollections – Whether oral evidence contradicting contemporaneous documents admissible – Hearsay evidence – Section 60(1) Evidence Act 1950 requirement for direct evidence – Whether witnesses had personal knowledge of facts – Whether testimony based on direct observation – Adverse inference – Section 114(g) Evidence Act 1950 – Whether failure to call material witness warrants adverse inference – Whether evidence withheld would have been unfavourable to withholding party EQUITY: Estoppel by conduct – Acquiescence – Laches – Whether party estopped from denying delivery by own contemporaneous conduct – Prolonged silence and inaction – Whether delay in raising complaint amounts to acquiescence – Whether party remained silent for extended period despite opportunities to verify position – Effect of signing delivery notes and certificates of completion – Whether party can resile from clear acknowledgments in formal documentation – Commercial certainty and fairness – Whether unconscionable to permit denial of delivery after others acted in reliance TORT: Negligent misrepresentation – Whether special relationship existed giving rise to duty of care – Whether duty of care arose from commercial relationship – Whether duty of care imposed in tort where parties have contractual relationship – Whether COVID-19 pandemic and Movement Control Orders created duty to act with reasonable care in confirming delivery – Whether breach of duty established – Whether causation and damage proven RESTITUTION: Unjust enrichment – Whether party unjustly enriched by receiving payment for services not performed – Whether consideration failed – Total failure of consideration – Whether enrichment at expense of plaintiff – Whether retention of payment unconscionable CIVIL PROCEDURE: Third party proceedin

Parties

FGV PRODATA SYSTEMS SENDIRIAN BERHAD - plaintiff - ejudgment_parties
1. ) NEC CORPORATION OF MALAYSIA SENDIRIAN BERHAD - defendant - ejudgment_parties
2. ) NEC CAPITAL SOLUTIONS MALAYSIA SENDIRIAN BERHAD - defendant - ejudgment_parties
Shinryu Co Sdn Bhd - pihak-ketiga - ejudgment_parties

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