–(1) Subject to paragraph (2), every pleading shall contain the necessary particulars of any claim, defence or other matter pleaded including, without prejudice to the generality of the foregoing words- ………………………… Page 7 of 23 [19] In a claim which is grounded on payments for goods allegedly sold and delivered, and evidenced on the usual documentation such as purchase orders, delivery orders and invoices, a certain degree of particularisation of these documentation ought to be included in the pleadings. Certainly, it is neither right nor fair for a plaintiff to simply plead the basis of its claim being the various documentation which, without more, “are known to the defendant”. And in the instant case before me, the reason for the need for inclusion of some details in the pleadings is even more compelling, considering that the parties to this suit have had business relationship and dealings in transactions for more than a decade, involving various and many different construction projects. [20] The assertion of the plaintiff that the defendant cannot now challenge the statement of claim since the latter did not raise its objection in its defence or at trial, or even applied for discovery or for better and better particulars earlier is unmeritorious. This is because it is trite that the burden of proving its case is firmly on the plaintiff throughout this civil proceedings, which is anchored on its statement of claim [21] In my judgment, the failure on the part of the plaintiff to plead material facts is therefore fatal to the plaintiff‟s claim. The plaintiff‟s claim should be dismissed on this ground alone. Documentation not adequately substantiated [22] There is no denying that at trial the plaintiff did seek to admit a long list of relevant documentation which were accepted by this Court. These were very voluminous. Thus for example, in making the argument that the defendant had failed to pay the sums allegedly owing as set out in the Statements of Account, these Statements of Accounts were included in the parties‟ common bundles of documents. [23] These were in the Common Bundle of Documents (CBD)2/Bundle B1 pages 1-6, CBD2/Bundle B1 pages 160-167, CBD3/Bundle B2 pages 414-419, CBD4/Bundle B3 pages 746-747, CDB4/Bundle B3 pages 750-751, CDB4/Bundle B3 pages 845-849, CBD6/Bundle B5 pages 1240-1241, CBD6/Bundle B5 pages 1276-1283, CBD7/Bundle B6 pages 1788-1791, CBD8/Bundle B7 pages 1899-1902, CBD9/Bundle B8 pages 2169-2176, CDB10/Bundle B9 pages 2296- Page 8 of 23 2303, CBD 10/Bundle B9 pages 2433-2435, CBD10/Bundle B9 pages 2467-2469 and CBD10/Bundle B9 pages 2472-2474. [24] The same goes for the other documents. In fact, even considerably more. Copies of hundreds of them were tendered at trial in the bundles of documents. Purchase Orders [25] But in the first place the plaintiff did not produce a single Purchase Order. This is after all a claim by the plaintiff that the defendant had ordered certain items of goods be supplied and delivered by the plaintiff to the defendant, some of which remaining unpaid. That orders should rightfully be contained in the Purchase Orders issued by the defendant purchaser specifying the items that it required from the plaintiff supplier/seller. But no Purchase Orders were tendered by the plaintiff. [26] In this regard, PW4 gave evidence during cross examination (not challenged during re-examination) that there were indeed Purchase Orders from the defendant, which would have been received by at least three individuals in the plaintiff company. Indeed PW4 even testified that when she left employment at the plaintiff company, she did not delete all her emails folders, and in any event, PW4 also said that she did not set any password for her office email. [27] There is thus doubt that goods and the quantity allegedly delivered to the defendant are the same as those purportedly ordered by the defendant. Sales Orders [28] In the absence of the Purchase Orders, the plaintiff‟s case is premised on the Sales Orders, which according to the plaintiff would be the more pertinent documentary evidence because they superseded the Purchase Orders and were signed off by both parties. [29] The plaintiff submitted that all the Sales Orders were signed by the plaintiff and the defendant. But this is not clearly borne out by evidence. There are simply far too many Sales Orders which are relied Page 9 of 23 on by the plaintiff which were without the acknowledgement by the defendant, numbering into the hundreds. [30] Even though PW1 confirmed that all the Sales Orders were signed at the material time, for otherwise the plaintiff would have been unable to process the Sales Orders and deliver the goods to the defendant, PW1 also admitted that the originals of some of the signed Sales Orders were missing. This resulted in the copies of the Sales Orders having been printed out from the plaintiff company‟s computer system. And the problem with this is that these copies were only recently printed for the purposes of this trial. [31] One would expect that reliance be placed on the actual Sales Orders which were purportedly sent to the defendant at that material time, which should be in the possession of the plaintiff. That is not the situation here. [32] It ought to be emphasised that the case of the plaintiff is apparently based on purported sales in 2011, 2012, 2013 and 2014. That the print-outs were only done recently cannot be doubted. This is because the Sales Orders adduced by the plaintiff at trial bore GST reference numbers, despite GST having been implemented in this country only in April 2015. This inescapably meant that the Sale Orders bearing the GST number must have been printed subsequent to the implementation of the GST and not done at the relevant time of the purported transactions. [33] The plaintiff‟s difficulty with producing the Sales Orders issued at the material time is quite perplexing. Witnesses for the plaintiffs, namely PW1, PW2 and PW4 gave contradictory testimony on the number of copies of the Sales Orders kept by the plaintiff company and who in the plaintiff company had usual custody of them, in all cases not re-examined by the plaintiff‟s counsel for clarification. PW5 for instance testified that all the five copies of the Sales Orders are in the possession of the plaintiff. PW2 in fact also testified that no one from the plaintiff company ask her to produce those Sales Orders being kept by her. This evidence was not challenged during re-examination. [34] Yet, the plaintiff chose to produce and rely merely on copies of the Sales Orders which were only recently printed. It is not the issue of the authenticity of the documents that had not been challenged. The Page 10 of 23 question is why the originals, as they were issued at the material time of the transactions, could not be produced. And crucially, these are not contemporaneous. [35] The value of the contemporaneous documents in the form of the Sales Orders issued at the time of transaction cannot be emphasised enough. In the case of Hijau Bumi Petroleum Sdn Bhd v Platinum Green Chemicals Sdn Bhd & 2 Ors [2017] 8 AMR 684, I stated thus:- “[44] I am, in this context reminded of the observation by Chang Ming Tat FJ on the importance and value of contemporaneous acts and documents, and the need to test oral testimonies against them, who in the case of Tindok Besar Estate Sdn Bhd v. Tinjar Co [1979] 2 MLJ 229, expressed as follows:- “Nevertheless the learned trial judge expressed himself to be completely satisfied with the veracity of the respondent's witnesses and their evidence. He purported to come to certain findings of fact on the oral evidence but did not notice or consider that the respondent's oral evidence openly clashed with its contemporaneous documentary evidence. For myself, I would with respect feel somewhat safer to refer to and rely on the acts and deeds of a witness which are contemporaneous with the event and to draw the reasonable inferences from them than to believe his subsequent recollection or version of it, particularly if he is a witness with a purpose of his own to serve and if it did not account for the statements in his documents and writings. Judicial reception of evidence requires that the oral evidence be critically tested against the whole of the other evidence and the circumstances of the case. Plausibility should never be mistaken for veracity...” [emphasis added] [36] An evaluation of the acts and documents contemporaneous with the event, when tested against the evidence given by the witnesses of the plaintiff would in my view lead to lend greater credibility to the case of the defendant. It would, I reiterate, be too conveniently self-serving and perfunctory for the plaintiff to now assert that the originals or copies of the Sales Orders which they said had been issued at the relevant time of the transactions in 2011, 2012, 2013 and 2014 could not be produced for no good reasons. Page 11 of 23 Delivery Orders [37] Further, when regard be had to the Delivery Orders produced by the plaintiff, similarly, these are not without flaws. Crucially, some are even without the requisite acknowledgment by the defendant. Despite the unchallenged testimony of PW4 that if a customer did not return the acknowledgment copy of Delivery Orders, the plaintiff company would send emails and make phone calls to the customer, such as the defendant, to get the acknowledgement copy, yet, PW2 admitted there is no evidence that the plaintiff requested for acknowledgment copy of the Delivery Orders from the defendant. And PW4 gave evidence that there are no missing Delivery Orders. [38] PW5 on the other hand proffered the version that there were two sets of Delivery Orders. One set is those delivery orders the plaintiff delivered goods to the plaintiff itself, and that subsequently in the process, there is another set of Delivery Orders to show the goods which were actually delivered to the defendant. However, this story is wholly not substantiated nor expressly pleaded. [39] There is another aspect to the evidence given on the Delivery Orders which in my view further weakens the case of the plaintiff. PW3 gave evidence that in relation to the Upper West Side Project, delivery was made to FTE (AUS) Ptd Ltd. Which according to PW3 was another company set up by the defendant, such that the true customer for the Upper West Side Project is Facade Treatment Australia Sdn Bhd. [40] Again, I find this assertion without merit. First Facade Treatment Australia Sdn Bhd and the defendant are not the same legal entities. Secondly, the statement of claim completely did not plead that the defendant established another company to purchase goods from the plaintiff. But the entity which received the goods is plainly not the defendant. To such extent, the plaintiff‟s entire claim in relation to the Upper West Side Project, involving the total sum of RM981,083.67 is without basis. [41] As such, despite the pleaded case of the plaintiff that the defendant had acknowledged delivery of the goods, it seems clear that the plaintiff has failed to prove, on the basis of the Delivery Orders, that Page 12 of 23 on the balance of probabilities, the defendant actually acknowledged those goods purportedly delivered to the defendant. Invoices [42] The Invoices, other than not having been printed during the material time, are also without the acknowledgement of the defendant. PW4 did give evidence that it was unnecessary for the Invoices to be acknowledged receipt. PW3 also gave evidence that only the Delivery Orders need acknowledgement from customers but not the Invoices. This, surely reduces the weight to be given to the Invoices as evidence of transaction between the parties. [43] That aside, another witness of the plaintiff, PW5 instead testified that the defendant had signed copies of the Invoices but she could not find them. The following exchange is relevant. “SCH : But you choose to print out after a few years. Alright. Ms Yeap, you handle account right? There are 1,511 such invoices altogether. Don‟t think it‟s very important from the Plaintiff to official write to the Defendant to ask “I have sent all these invoices to you from the past five six years. You did not return back all the signed copy. Where is all those signed copy don‟t you think it‟s very important, Ms Yeap? YEAP : There were signed copies. It‟s just that we couldn‟t find the signed copies. [44] There is one argument of the defendant which I find quite compelling. It is this. Whilst the Invoices in the bundles are Invoices which the plaintiff claimed as yet to be paid by the defendant, the ones without acknowledgment from the defendant alone amounted to a staggering sum of RM56,917,774.73, far exceeding, many times over, the pleaded outstanding amount of RM7,937,243.68 (excluding interest) actually claimed by the plaintiff. This more than demolishes whatever semblance of substance left in the case of the plaintiff. [45] The issue of whether or not the Invoices were indeed sent to the defendant and the accuracy of the amount claimed remains unresolved. It is unproven. Page 13 of 23 Statement of Accounts [46] That is not all. The plaintiff even produced the Statements of Account in its attempt to prove knowledge on the part of the defendant of the sum allegedly owed to the plaintiff. But there are a number of questions with the plaintiff‟s reliance on the Statements of Account for this purpose. [47] First, and this is quite fundamental, the plaintiff did not plead anything about the Statements of Account in its statement of claim. The importance of pleadings cannot be emphasised enough. In the case of Recaliva Design Steel (M) Sdn Bhd v Vista Access Sdn Bhd & Anor [2008] 10 CLJ 491, it was held that:- “The court is not obliged to consider in its judgment, stories which are not reflective of the pleadings. Pleadings are essential foundation to analyse disputes. Evidence must relate to pleadings…” [48] The critical importance of parties and the Court to be bound by the four corners of the pleadings of the litigants has been emphasised many a time by various judicial pronouncements of high authority. I refer to relevant passages from only two recent decisions by the apex Court on this issue. [49] In the Federal Court decision in the case of Giga Engineering & Constructions Sdn Bhd v Yip Chee Seng & Sons Sdn Bhd & Anor [2015] 9 CLJ 537, Richard Malanjum CJ (Sabah & Sarawak) held thus:- [42] Now, it is trite law that the plaintiff is bound by its own pleadings. (See R Rama Chandran v. Industrial Court of Malaysia & Anor [1997] 1 CLJ 147; [1997] 1 MLJ 145; Anjalai Ammal & Anor v. Abdul Kareem [1968] 1 LNS 8; [1969] 1 MLJ 22; Gimstern Corp (M) Sdn Bhd & Anor v. Global Insurance Co Sdn Bhd [1987] 1 CLJ 123; [1987] CLJ (Rep) 102; [1987] 1 MLJ 302 SC; Joo Chin Kia v. Loh Seng Tek [1987] 1 CLJ 194; [1987] CLJ (Rep) 662; KEP Mohamed Ali v. KEP Mohamad Ismail [1980] 1 LNS 169; [1981] 2 MLJ 10 FC). The plaintiff is not permitted to improve its pleading in any other manner other than by way of an application to amend. Otherwise it would be unfair and prejudicial to the defendants if the plaintiff could now be allowed to raise an issue that was not within the contemplation of the parties in the first place. (See Esso Petroleum Co Ltd v. South Port Corp [1956] AC 218; Playing Cards (Malaysia) Sdn Page 14 of 23 Bhd v. China Mutual Navigation Co Ltd [1980] 1 LNS 57; [1980] 2 MLJ 182 FC). [50] In another recent Federal Court decision in Samuel Naik Siang Ting v. Public Bank Bhd [2015] 8 CLJ 944, Ramly Ali FCJ held instructively as follows: “[29] It is a cardinal rule in civil litigation that parties are bound by their pleadings and are not allowed to adduce facts and issues which they have not pleaded (see: State Government of Perak v. Muniandy [1985] 1 LNS 117; [1986] 1 MLJ 490; and Anuar Mat Amin v. Abdullah Mohd Zain [1989] 1 LNS 74; [1989] 3 MLJ 313). In Blay v. Pollard & Morris [1930] 1 KB 628, Scrutton LJ ruled that: "Cases must be decided on the issues on the record; and if it is desired to raise other issues there must be pleaded on the record by amendment." [30] The Supreme Court in Lee Ah Chor v. Southern Bank Bhd [1991] 1 CLJ 667; [1991] 1 CLJ (Rep) 239; [1991] 1 MLJ 428, had also emphasised the importance of pleadings and ruled that where a vital issue was not raised in the pleadings it could not be allowed to be argued and to succeed on appeal (see also Ambank (M) Bhd v. Luqman Kamil Mohammed Don [2012] 3 CLJ 551; [2012] MLJU 56 FC). [31] On the same issue, HRH Raja Azlan Shah FJ (as HRH then was) in The Chartered Bank v. Yong Chan [1974] 1 LNS 178; [1974] 1 MLJ 157, had also pointed out that "as the trial judge had decided on an issue which was not raised in the pleadings, the judgment must be set aside and new trial ordered" (see also: Haji Mohamed Dom v. Sakiman [1955] 1 LNS 26; [1956] MLJ 45; and Kiaw Aik Hang Co Ltd v. Tan Tien Choy [1963] 1 LNS 59; [1964] MLJ 99). [32] Based on the above observation and principle, we are of the view that the "last minute" issue raised by Mr Gobind Singh Deo, co-counsel for the appellant, that at the time when the sale and purchase agreements with the earlier purchasers were executed, MPM was not the registered proprietor/owner of the land must be disregarded and not to be considered at all in determining the appeal before us. In doing so, we adopt the observation by HRH Raja Azlan Shah CJ (as HRH then was) in KEP Mohamed Ali v. KEP Mohamed Ismail [1980] 1 LNS 169; [1981] 2 MLJ 10: As one of the objects of modern pleadings is to prevent surprise, we cannot for one moment think that the Defendant Page 15 of 23 was taken by surprise. To condemn a party on a ground of which no material facts have been pleaded may be a great a denial of justice as to condemn him on a ground on which his evidence has been improperly excluded. [33] The issue raised, if accepted, would completely change the character of the appellant's defence to the respondent's claim and would be highly prejudicial to the respondent's case. [34] For the purpose of the present appeal, we will only consider the pleaded case of the parties before us. To borrow the words of Gopal Sri Ram JCA in Cheong Heng Loong Goldsmiths (KL) Sdn Bhd & Anor v. Capital Insurance Bhd [2004] 1 CLJ 357, "... once a defendant takes that course, he must stand and fall on his pleaded case; we cannot simultaneously put forward an unpleaded case..." [51] Secondly, PW3 during cross examination agreed that there were no documents before the Court to show that the Statements of Account were sent and issued by the plaintiff and delivered to the defendant. [52] Thirdly, the person who according to PW3 visited and dealt with the defendant to follow up on the alleged sums owing to the plaintiff was one Mr Lu Hanh Siong. Despite evidence that the latter was still contactable, the plaintiff conveniently chose not to call Mr Lu Hank Siong as a witness. [53] Fourthly, PW6 was allowed to introduce during trial what appeared to be an endorsement from the Butterworth Post Office with the title of Customer‟s Statement of Account posted on 20 July 2016. PW6 during examination in chief testified that these were for Statement of Accounts for the months of April, May and June 2016 and item 7 to item 22 were referred to the defendant (15 items) to demonstrate that the plaintiff indeed had posted 15 different letters on 15 different projects to the defendant. [54] But I find these answers not convincing. The fact remains the Statements of Accounts were not available in Court. Even if it was accepted that the plaintiff did indeed post those Statements of Accounts (of the alleged transactions from 2011 to 2014) to the defendant Page 16 of 23 relatively recently on 20 July 2016, surely the plaintiff would be in the position to tender the Statements of Accounts at trial. [55] As such, the plaintiff‟s argument that the defendant should be estopped, applying the leading Federal Court decision in Boustead Trading (1985) Sdn Bhd v Arab-Malaysian Merchant Bank Bhd [1995] 3 MLJ 331 from now disagreeing with the Statements of Account, when the defendant did not disagree with the Statements of Account upon receipt or at all, is short on substance. [56] Neither is reliance by the plaintiff on the recent judgment of the Court of Appeal in Small Medium Enterprise Development Bank Malaysia (formerly known as Bank Perusahaan Kecil dan Sederhana Malaysia Bhd) v. Lim Woon Katt [2016] 5 MLJ 220 is of much assistance to the plaintiff. The plaintiff sought to rely on that case to weaken the case of the defendant which failed to respond to the letter of demand. [57] But in that case, Hamid Sultan JCA, delivering the judgment of the Court made it clear that a non-response did not amount to an admission. His lordship said thus:- “in abundance of caution we must say that failure to respond must not be equated to admission of the claim under s 17 of the Evidence Act 1950 („the EA 1950‟). Failure to respond will relate to conduct under s 8 of the EA 1950. Conduct is a relevant fact for the court to take into account to give the relevant probative force to the version of the plaintiff and/or defendant‟s case. It is well settled that not all demand notices must be responded. In Wiedemann v Walpole [1891] 2 QB 534, in an action for breach of promise of marriage, it was held, that the mere fact that the defendant did not answer letters written to him by the plaintiff in which she stated that he had promised to marry her, was no evidence corroborating the plaintiff‟s testimony in support of such promise;……” [58] The failure of the defendant to respond is in my assessment not unreasonable given the circumstances. First, the notice of demand, which was dated 23 December 2016 was only received by the defendant on 30 December 2016. Secondly, despite the long standing business relationship between the parties, and the various projects they had both worked on together, the notice was devoid of the requisite particulars of the type of goods, date of the purported transactions, of the projects Page 17 of 23 involved, or even a single reference to any of the Purchase Orders, Sales Orders, Delivery Orders, Invoices or Statements of Accounts. The total claim itself was RM13,427,333.65, all of which required time for the defendant to check against. But before the defendant knew it, the plaintiff had already served the writ of summons in January 2017. [59] Much is made of DW1‟s testimony that he might not be in the know of the Sales Orders, Delivery Orders, Invoices and Statements of Account. However, each and every of the Purchase Orders issued by the defendant was signed by DW1, negating the argument that he was not aware of the transactions between the parties. DW1 further informed the Court that he had checked with his account staff and confirmed that those Invoices and Statements of Account had never been received from the plaintiff company. Yet when DW2, the accounts manager gave evidence, the plaintiff chose not to challenge her on these documents. [60] It is important to note that in a case for goods sold and delivered, the essential documents of purchase orders, delivery orders and the invoices must be produced for proof (see, for example, the Federal Court decision in Pernas Trading Sdn Bhd v Persatuan Peladang Bakti Melaka [1979] 2 MLJ 124, and the High Court decision in Wescourt Design Sdn Bhd v Wescourt Furnishing (M) Sdn Bhd [2015] 11 MLJ 735). In this instant case before me the evidentiary value of most of these documents, as I have shown earlier, is nothing but suspect. The plaintiff has not succeeded in surpassing the threshold of proving its case on a balance of probabilities given these deficiencies. Claim for Interest [61] The plaintiff also sought to rely on clause 9 of the Conditions of Sale of all the Sales Orders which provided that “The Company reserves the right to charge interest at 18% interest on overdue amounts”. Similarly, clause 8 of the Conditions of Delivery of the Delivery Orders stated “The company reserves the right to charge interest at 18% per annum if the above amount is not paid on due date”. And the Invoices also provided that “The company reserves the right to charge interest at 18% per annum if the above amount is not paid on due date”. That is not all. For all the Statements of Account provided that “Interest of 1.5% per month will be charged on overdue account”. It is not doubted that 1.5% per month is the equivalent of 18% per annum. Thus, Page 18 of 23 the plaintiff is entitled to interest at the rate 18% per annum, as this rate had been agreed between the parties. [62] The Federal Court in Chuah Eng Khong v. Malayan Banking Bhd [1998] 3 MLJ 97 held: “It is purely a matter of construction of a document as to whether it contains a covenant for a contractual rate of interest overriding the maximum rate of interest allowed by law or rules of court on any judgment sum claimed under the said document. That appears to be the unanimous view of all the Law Lords in Economic Life Assurance Society in construing the mortgage deeds in question there, where they found the contractual covenant to override the maximum rate of interest allowed by law or rules of court on the judgment sum. ... Coming back to the said loan agreement and learned counsel‟s submission that the covenanted rate of interest is not in an independent covenant, we find such submission unacceptable (see Economic Life Assurance Society v Usborne, as explained above), and that the contractual rate, though above the statutory maximum rate, is recoverable.” [63] In terms of the claim for interest, on the due date of the Invoices, the principal sum remained unpaid, and from the said date and until the date of issue of the writ, interest on the principal sum accrued at the rate of 18% per annum producing a total amount of interest due at the issue of the writ of RM5,769,771.11. [64] However, despite the long standing business relationship between the parties, the plaintiff had never charged interest on the defendant, regardless of the fact of the presence of the clauses, as mentioned, on the Sales Orders, Delivery Orders, Invoices and Statements of Accounts. This first attempt to charge interest should thus be estopped. [65] In any event, given the considerable gaps in the evidentiary value of the documents tendered by the plaintiff which disentitled it from succeeding in its claim for the alleged sum owing from the defendant, the plaintiff‟s claim for interests, which was also premised on the same documents, now discredited, could, as a consequence, similarly no longer be sustained. Page 19 of 23 Payments by defendant [66] It is observed that the defendant did make a proposal in its letter dated 17 June 2013 to settle all outstanding sum at that point in time. DW1 testified that thereafter the defendant actually started making payments and had indeed made full payment to the plaintiff. In fact, the defendant tendered in Court a detailed set of documents which set out various particulars of the payments said to have been made to the plaintiff following the said letter of 17 June 2013, during the period between 19 June 2013 and 6 February 2015, with a total sum of RM5,720,240.56. [67] The plaintiff denied this and alleged that such payments by the defendant were made to resolve other set offs unrelated to the present claims. And to substantiate its case, the plaintiff at the stage of continued trial after several weeks in between introduced new bundles of documents which according to the plaintiff showed the reasons for the payments by the defendant. [68] Crucially however, the testimony of PW6 to advance this assertion is of little substantive worth. This is because of hearsay evidence which is inadmissible. PW6 gave evidence that PW4 told PW6 that one Mr Ong got the information as to which invoices to be set off after Mr Ong communicated with the defendant. Similarly, PW6 claimed he had spoken with PW1 who told PW6 that one Mr Lu Hann Siong had communicated with the defendant to ascertain which invoices to be set off. [69] Clearly PW6 had no knowledge of the invoices so identified for set off, and more significantly, in the absence of Mr Ong and Mr Lu from the witness box, there is no evidence that the communication with the defendant on the purported set off actually occurred. Whatever PW6 said on this issue is hearsay. [70] The plaintiff could have at least applied to recall PW1 and PW4. But the plaintiff did not, at least in respect of PW1. The plaintiff did try to recall PW4 to clarify on the purported instruction given by the defendant. Curiously, PW4 refused to attend again, resulting in a warrant of arrest being issued against PW4, but only to be not pursued by the plaintiff subsequently, settling instead for further examination of PW6. In Page 20 of 23 contradistinction, DW2 in cross examination stood firm that she or the defendant never gave those instructions as alleged by the plaintiff. [71] Thus, the assertion that payments had been made by the defendant following the letter 17 June 2013 and there is no further outstanding sum from the defendant to the plaintiff is neither unconvincing nor baseless. [72] Quite apart from the deficiencies in the evidential support sought to be adduced by the plaintiff, on the whole the claim now pursued by the plaintiff is a curious one. The transactions in question were said to be in 2010 to 2014. Yet despite the alleged outstanding sum to the tune of around RM7 million, the plaintiff only found it convenient to commence an action for recovery in 2017. And despite the claim of sums owing, the plaintiff even continued to supply and deliver goods to the defendant post-2014, and now seeks to premise its claim for sums allegedly owing from the defendant on documents of spurious nature. On the whole, in my judgment, the plaintiff did not quite manage to dispel the contention of such payments having already been made by the defendant to the plaintiff earlier. Claims of transportation, factory and labour charges [73] The plaintiff‟s claims for transportation charges, factory expenses, and labour charges also cannot be sustained. First, as correctly submitted by the defendant, these were not pleaded in the statement of claim of the plaintiff. For this reason alone, these claims cannot succeed. Secondly, as for the transport claim, the charges had already been computed as part of the Sales Orders, as testified by PW1 no less. Factory expenses is plainly nothing to do with the plaintiff‟s claim for goods sold and delivered. And neither were charges for labour related to a claim premised on goods sold and delivered.