Kejuruteraan Lektrik Seri (M) Sdn Bhd v Arc Power Marketing Sdn Bhd (BA-12BNCVC-4-01/2017)

This is an appeal by the Appellant (Defendant) against the decision of the learned Sessions Court Judge in allowing the Respondent’s (Plaintiff) claim amounting to RM500,000.00 for breach of contract for failure to accept goods and the amount of RM55,000.00 as damages for storage charges.

In this judgment, the parties are referred to as they were in the Sessions Court.

The background facts leading to this appeal based on the Appeal Record and the written submissions of both counsels can be summarized as follows:

The Plaintiff is a company incorporated under Companies Act 1965 in Malaysia and having its business address at Lot 28242, Kampung Jaya Industrial Area, 47000 Sungai Buloh, Selangor Darul Ehsan.

The Defendant at all material time is a private limited company incorporated under the Companies Act 1965 in Malaysia and having its address at No. 186, Jalan Mantin, Off Jalan Goh 3 Hock Huat, 41400 Klang, Selangor Darul Ehsan and the business address is at Lot 10814, Jalan Petai, Pandamaran, 42000 Port Klang, Selangor Darul Ehsan.

It is undisputed that upon the Defendant’s request, a Quotation dated 14.10.2011 bearing reference number TP/KLS/QTT/ 339/TELITI/10092011-4 (the Quotation) for the supply and/or delivery products type Translite Busduct that is 1600A, 4000A, 6300A TPN 4W+50%E IP42 Copper & 5000A 3W+200%N + 50%E (IP42) Copper brand Translite Busduct at the contract value of RM1,200,000.00 (power distribution cable and is referred to as ‘the Goods’)was issued by Translite to the Defendant for a project Teliti Data Centre @ Bandar Techpark @ Enstek (the said Project) where the Defendant had the knowledge of the detailed Quotation (Agreed Facts, pages 36 – 37 and page 28 of Plaintiff’s Reply to Defence of Appeal Record).

The Plaintiff claimed that Translite is a supplier for the Project and not the main contractor as alleged by Defendant (paragraph 4, page 28 of Appeal Record). The Plaintiff claimed that the Defendant agreed to the terms of the Quotation and issued the Purchase Order reference number11769 and 11770, both dated 14.10.2011 (Purchase Order) to the Plaintiff (paragraph 4, page 15 of Appeal Record). 4

The Plaintiff also claimed that the Defendant upon vetting the Quotation is said to have difficulty to make payment of 30% deposit for confirmation of purchase to Translite and Defendant requested Plaintiff as agent for the Translite to deliver the Goods to Defendant and issued the Purchase Order.

The Plaintiff claimed that based on an agreement proven by the Quotation and the Purchase Order (the Contract) and the Defendant’s representation in need of the Goods immediately, the Plaintiff ordered the Goods from Translite Project SdnBhd (Translite) based on the specific specification of the Defendant’s requirement for the Project only and the Plaintiff also followed the delivery schedule prepared by the Defendant for March 2012. The Plaintiff claimed that Translite informed the Plaintiff that the Goods are ready to be delivered based on letter of 5.3.2012 and the Plaintiff immediately informed the Defendant that the Goods will be sent 3 days from the date of letter, to the Project site (page 170 of Appeal Record).

The Plaintiff claimed that Translite issued an invoice for the payment of RM500,00.00 on the delivery of the Goods to Plaintiff’s warehouse dated 22.5.2012 (page 171 of Appeal Record0. The Plaintiff pleaded that it sent a reminder of 13.6.2012 to inform the Defendant that the Goods are ready for delivery and requested for the Defendant to give a delivery date. 5

The Plaintiff pleaded that via letter of 18.6.2012 had informed the Defendant that due to Defendant’s delay to fix a delivery date, the Plaintiff will impose interest charges and storage charges for the Goods at the Plaintiff’s warehouse starting on 1.7.2012 if the Goods are not delivered and accepted by Defendant latest by end of June 2012.

The Plaintiff then via letter of 5.6.2013 informed the Defendant that the Plaintiff had advanced the payment of RM500,000.00 on behalf of the Defendant on 22.5.2012 for the Goods since March 2012 to Translite as in Invoice No. TP005/12 dated 22.5.2012 and Delivery Order No. TP005/12 dated 22.5.2012 issued by Translite to Plaintiff.

The Plaintiff claimed that on the representation and agreement by both parties, both parties agreed to revise the terms and conditions of the Quotation as the Defendant failed to verify on the delivery date of the Goods (paragraph 5(e) Plaintiff’s Reply to Defence, page 29 of Appeal Record). The Plaintiff then issued a second quotation QB/12/00023 dated 25.5.2012 (the 2nd Quotation) which provides the terms of 60 days on credit, no cancellation or amendment after confirmation of the Goods and any cancellation will be imposed with 50% based on the value of purchase order and the estimated delivery is within 3 months with the confirmation and approved shop drawing (paragraph 5(f), Plaintiff’s Reply to Defence, page 30 of Appeal Record). 6

The Plaintiff claimed that on 13.6.2012 and 28.6.2012 via letter had informed the Defendant again to accept the Goods, however the Defendant failed and/or refused to accept the Goods and had caused the Goods to be stored in the Plaintiff’s warehouse. The Plaintiff then issued the Debit Notes to the Defendant for the interest charges and storage charges for the Goods, totaled RM165,000.00.

The Plaintiff through Tetuan Lee, Ong & Partners had served Notice of Demand dated 19.12.2013 to the Defendant to terminate the Contract and demanded Defendant to repay the whole amount owned. The Plaintiff claimed that the 2nd Quotation supersede the Quotation which is based on payment of 60 days credit (paragraph 6, page 30 of Appeal Record).

The Defendant on the other hand, in its Defence denied that there was a valid and enforceable Contract with the Plaintiff. The Defendant claimed that Transliteis the main contractor for the Project (page 22 of Appeal Record) which provides the Quotation and based on the drawings submitted by the Defendant, subject to the terms and conditions.

The Defendant claimed that it responded with a Purchase Order dated 14.10.2011 (Exhibit D18, pages 199-200 of Appeal Record)and claimed that the acceptance of the Goods are subjected to the payment terms stated in the Annexure 1 of Quotation which the Defendant did not confirmed its 7 acceptance by payment terms of 30% deposit and 70% LC at sight therefore the delivery should be postponed and there was no contract agreed (paragraphs 6 - 9and 11 Defence, pages 23 - 24 of Appeal Record).

The Defendant claimed that Translite on 14.10.2011 appointed the Plaintiff to be its agent for the transaction and requested the Defendant to deal with the Plaintiff (Exhibit P1, page 157 of Appeal Record).

The Defendant claimed that it did not hear from the Plaintiff nor Translite. The Defendant claimed that the Plaintiff then provided a new quotation dated 25.5.2012 for RM1,138,461.48 (2nd Quotation), 3 days after delivery of the Goods to the Plaintiff on 22.5.2012. The Defendant claimed that the payment terms were amended where it differed, requiring the Defendant to provide 60 days post-dated cheque on delivery and the Defendant.

The Defendant claimed that the Plaintiff requested the Defendant to accept delivery on 13.6.2012 (Exhibit P11, page 181 of Appeal Record) stating that about 60% of the finished Goods were sent to Plaintiff’s warehouse and Plaintiff had paid cash in advance for the Defendant and asked the Defendant to accept delivery and the Defendant did not respond. 8

The Defendant disagreed that the Defendant delayed in fixing the delivery date of the Goods and the advance payment and claimed that the storage charges of the Plaintiff is excessive and baseless and strongly objected to the storage charges as there was no 30% deposit paid (paragraphs 10, 12, 18-20 pages 24 - 25Defence of Appeal Record).

The Defendant claimed that at all material time, the Defendant on numerous occasions requested Plaintiff to postpone the delivery of the Goods where acceptance had not been confirmed (paragraphs 18-19 Defence page 25 of Appeal Record).

The Defendant pleaded in the alternative that the Plaintiff could mitigate losses by releasing the Goods (paragraph 22 of Defence, page 26 of Appeal Record). The Defendant also claimed that the price of the Goods had been marked up for 50% and if the Plaintiff had sold the Goods, the Plaintiff would have profited and not suffered losses (paragraph 23 Defence, page 26 of Appeal Record). Defendant’s case [4] The learned counsel for the Defendant advanced several grounds for the appeal. Briefly, the counsel submitted that the learned Session Judge was plainly wrong in concluding that the Plaintiff’s quotation dated 25.5.2012 (Exhibit P10) and the Defendant’s Purchase Order (Exhibit D18) 9 were on the same terms and therefore formed a valid contract to which the Defendant objected. [5] The Defendant’s counsel averred that Translite (not a party to this dispute), appointed Plaintiff as an agent to deal with the Defendant and Translite issued the Quotation 14.10.2011 and payment terms were disagreed, the Quotation is exhibited as P2 (pages 158 – 162 of Appeal Record). [6] The Defendant’s counsel submitted that the Defendant responded to the Quotation by issuing a handwritten Purchase Order to the Plaintiff (page 199 of Appeal Record)identified as D18 of 14.10.2011 (pages 199 – 200 of Appeal Record) stating the counter offer which ispayment terms of 60 days. [7] The Defendant’s counsel averred that the new proposed terms of the payment by the Defendant was never accepted by the Plaintiff. It is submitted that there was no contract due to several reasons, that there was a lapse of reasonable time after the Quotation where there was a lapse of 7 months before the 2nd Quotation. Thereafter, the purported confirmation based on the 2nd Quotation reflected different specifications, quantities and priceand different terms of payment, which is 60 days with post-dated cheque. In addition, the 2nd Quotation was sent to the Defendant 3 days after the Goods were manufactured and delivered to the Plaintiff’s warehouse. 10 [8] It is further averred that there was no agreed payment terms and letter by Plaintiff on 13.6.2012 to the Defendant to take the delivery simply because the Plaintiff had paid Translite RM500,000.00 as advance payment. [9] The counsel for the Defendant highlighted to this Court the 2nd Quotation (page 178 of Appeal Record) where the specifications and quantity mentioned,are different from the Quotation. It is further submitted that based on Quotation (D18) and the 2nd Quotation (P10),they are materially different in terms of specifications and quantity, andthe amount in D18 was RM1.2m whereas the amount in the 2nd Quotation is stated as RM1,138,416(page 180 of Appeal Record). It was submitted that the letter with the 2nd Quotation sent 3 days after Translite had delivered the Goods to Plaintiff, was done without the knowledge and agreement of the Defendant. [10] The Defendant’s counsel referred to the Supplementary Appeal Record where the Sessions Judge in her written judgment, at page 17 of Supplementary Appeal Record, dismissed the Defendant’s ground of no contract simply because no payment of 30% as deposit. It is submitted that the Sessions Judge was wrong to refer to the 2ndQuotation from Translite (page 21 of Supplementary Appeal Record) and erred in deciding that there was an oral agreement. [11] It is further averred by the Defendant’s counsel that there was no evidence produced by the Plaintiff that the goods were stored at the 11 Plaintiff’s warehouse. The only evidence the Session Court Judge relied on was the oral evidence of the Plaintiff’s witness. Plaintiff’s case [12] The learned counsel for the Plaintiff submitted on the issuance of the 2ndQuotation, that the 2ndQuotation was a request by the Defendant, by one Mr. Lim or Encik Ali, and the Defendant failed to call them as witnesses to testify. It was submitted that the 2ndQuotation issued was because the Defendant could not accept or fulfill the 30% deposit by Defendant and submits that the request for the 2ndQuotation was by the Defendant. It is submitted also that the Session Judge accepted that the 2ndQuotationwas by Mr. Lim who works for the Defendant (page 21 of Supplementary Appeal Record). [13] The Plaintiff’s counsel argued that the Defendant failed to call Mr. Lim and Encik Ali to rebut the Plaintiff’s evidence. It is submitted that the Defendant’s witness, SD1 (paragraph 5, page 23 Supplementary Appeal Record), was commented by the Session Judge as not Defendant’s representative (page 23 Supplementary Appeal Record) having failed to adduce evidence and not recalling any of the Plaintiff’s witnesses. The Session Judge viewed that as the Defendantfailed to call its relevant witnesses to rebut Plaintiff’s evidence, on the balance of probabilities, the Plaintiff had proved its statement. [14] It was argued by the Plaintiff’s counsel that in relation to the RM500,000.00 advanced by the Plaintiff to Translite, the Defendant had 12 said that it is nothing to do with them, however it is submitted that the Defendant had put limited evidence before the trial judge. [15] The Plaintiff’s counsel further averred that as the 2ndQuotation was issued by the Plaintiff to the Defendant and the Defendant did not object to it, the principle of estoppel comes in where the Defendant is estopped from denying the 2nd Quotation. Defendant’s Reply [16] In reply to the Plaintiff’s submission, the Defendant’s counsel submitted that the witness, SD1 was the Executive Director of Defendant and testified that she and Mr. Lim, are officers of the Defendant and together at all times managed the transaction (pages 97 – 98 of Appeal Record). The counsel for the Defendant averred that there were 23 questions posed to SD1 and the witness’s answers where she could not recall was for about 5 questions relating to the correspondence between the Plaintiff and Translite which includes the details of the Bankers Acceptance where she would not have the knowledge and the Session Judge erred in finding SD1 as not a credible witness. [17] The Defendant’s counsel submitted that SD1’s testimony in examination-in-chief stated that the Defendant never confirmed acceptance of Translite’s Quotation (Exhibit P2) or the Plaintiff’s 2nd Quotation of 25.5.32012 (Exhibit P10). It is submitted that SD1 also testified that there was no agreement for the Plaintiff to advance Translite the RM500,000.00and the Session Judge erred in finding that the Plaintiff was 13 kind hearted to advance the payment for the Defendant without waiting for the deposit (page 21 and page 27 of Supplementary Appeal Record). APPEAL [18] It is well-established principle that an appellate court should be slow in disturbing a finding of fact by a trial judge unless the trail judge was plainly wrong in law. What has been defined as plainly wrong can be found in a number of great authorities which held that where the trial judge had a clear misdirection of fact and law or the trial judge made a wholly erroneous estimate of damage suffered, that warrants the appellate court to intervene: GanYook Chin (P) & Anor v Lee Ing Chin @ Lee Teck Seng [2005] 2 MLJ1; Multar Masngud v Lim Kim Chet & Anor [1982] CLJ 237FC and Ming Holdings (M) Sdn Bhd v Syed Azahari Noh Shahabudin & Anor [2010] 6 CLJ 857. [19] Let’s revert to the facts. In this case, the Plaintiff pleaded that upon the Defendant’s request, the Plaintiff issued the first Quotation dated 14.10.2011 and that the Defendant agreed and accepted the terms in the said Quotation and issued a Purchase Order of 11769 and 11770 where both dated 14.10.2011 (paragraphs 3 &4, page 15 Appeal Record). The Plaintiff also pleaded at paragraph 5 of Statement of Claim that based on the agreement between Plaintiff proven through the Quotation and the Purchase Order and Defendant’s representation for the delivery of the Goods, the Plaintiff ordered the Goods from Translite Project Sdn Bhd. based on specific specificationsas Defendant’s request for the Project. 14 [20] Upon careful perusal of Plaintiff’s witness statement and oral evidence, it is the Plaintiff’s submission that the Defendant was not able to fulfil the payment terms as stated in the Quotation dated 14.10.2011 (Exhibit P2, pages 158-162 of Appeal Record) and requested for Translite to amend the payment terms but was not agreed by Translite (page 47 of Appeal Record). [21] At this juncture, this Court finds that the main issue is whether there was a contract formed, whether there was an acceptance of the Quotation by the Defendant. It is the pleaded case of the Plaintiff that there is a valid contract and the Defendant breached a term of the contract by failing to reimburse the Plaintiff the advance payment and take delivery of the Goods. [22] Upon careful perusal of the pleadings and the Quotation, this Court finds that the Quotation was the first offer made to the Defendant by Translite (pages 158 – 162 of Appeal Record) where the terms and conditions are as stipulated at Appendix 1 of the Quotation particularly at clauses 4,5,6 and 7 (page 162 of Appeal record), is reproduced for ease of reference: “4. The expected delivery(ies) time is 3 month from:

Confirmation of your order together with the approved shop drawings; and

(ii) Received LC Whichever is later; 15

The payment terms is 30% deposit upon confirmation of order and 70% irrevocable letter of credit (“LC”) at sight upon initiation of production;

The deposit is nonrefundable and valid for 3 months only. The booking of cooper shall only be executed upon receipt of confirmation deposit;

No order may be cancelled or amended after confirmation of order without our written approval. A minimum cancellation fee of 30% of the order will be charged for orders cancelled within (14) days of confirmation. A 50% cancellation will be imposed for cancellation after fourteen (14) days. No cancellation will be accepted after one month from the date of confirmation order; ….

This quotation is valid for 24 hours only; and 13. This quotation is subject to change without notice.” [23] The Quotation is subjected to confirmation of order by the Defendant with the approved shop drawings and letter of credit (LC) where 30% deposit is to be made upon confirmation. This Court finds that based on the Purchase Order issued by the Defendant on the same day, stating with the payment terms of 60 days, differ from the payment terms as per Appendix 1 of the Quotation. [24] The terms of Appendix 1 is part of the Quotation where it is clearly stated, “should be read in conjunction with this quotation” (page 162 of Appeal Record). The language of clause 4 is simply the terms where the delivery is 3 months from confirmation of order by the Defendant together 16 with the approved shop drawings and “Received LC whichever is later”. This Court viewed that the Defendant is required to fulfil clause 4 for the delivery to be allowed. [25] Accordingly, the payment term is firstly, 30% deposit upon confirmation of order following clause 5, to be fulfilled. It is pertinent to note that based on clauses 4 and 5 of the Quotation, prior to the payment of the deposit, there must be confirmation of order communicated by the Defendantin order for the booking of copper to be executed (page 53 of Appeal Record). [26] This Court evaluated the Quotation and the Purchase Order tested with the oral testimony of the Plaintiff’s witnesses. The Plaintiff’s witness, SP1, testified in examination-in-chief that the proof of Defendant’s acceptance is by the Defendant’s issuance of Purchase Order to the Plaintiff (page 45 of Appeal Record). SP1 also testified during examination-in-chief, that the Goods were not made available as the Defendant could not fulfil the terms of payment for the deposit as stated in the Quotation (page 46 of Appeal Record) and based on that the Defendant dealt directly with the Plaintiff (page 47 of Appeal Record). [27] However during the cross-examination of SP1, it was affirmed that there was no deposit of 30% by the Defendant and there was no LC from the Defendant (page 52 of Appeal Record). In fact, SP1 also stated that the Goods were supplied to the Plaintiff and not to the Defendant as the Plaintiff had informed Translite that the Defendant could not fulfil the terms of payment deposit and the Goods was delivered to the Plaintiff after 17 Plaintiff made payment of 30% deposit to Translite (page 53 of Appeal Record). [28] The Court viewed that the Defendant’s counsel challenged SP1 during cross-examination,questioning on the status of the Quotation where the drawings were not finalised and therefore the Quotation has yet to be finalised, to which SP1 answered in the affirmative (page 55 of Appeal Record). [29] The Plaintiff’s other witness, SP2 testified during examination-in-chief, affirming that the Defendant was unable to agree to the payment terms of Translite (page 63 of Appeal Recod). SP2 also testified that Translite disagree to Defendant’s request for a revised terms of the Quotation (page 65 of Appeal Record). This Court finds thatSP2 had testified that the acceptance made by the Defendant is by way of 2nd Quotation of 25.5.2012 (page 64 of Appeal Record). [30] An ‘acceptance’ is defined under section 2(b) of Contracts Act 1950: “When the person to whom the proposal is made signifies his assent thereto, the proposal is said to be accepted: a proposal when accepted, becomes a promise.” Section 7 of Contracts Act 1950 clearly provides that for an acceptance to be valid, it must be absolute and unqualified and be expressed in some usual and reasonable manner and it must be communicated. 18 [31] Based on section 2 and 7 of Contracts Act 1950, it is of this Court’s view that as the terms of a formation contract is provided for but parties did not conformed to, there can be no contract concluded between the parties. This Court finds that there was no confirmation of acceptance by the Defendant according to the Quotation as spelt out in clauses 4 and 5 of the Quotation. This Court viewed that the respond by the Defendant with the payment terms of 60 days is a counter-offer by the Defendant. This accords with section 7(a) of Contracts Act 1950 which requires acceptance to be “absolute and unqualified”. [32] The High Court case of Mahabuilders Bhd v Hotel Rasa Sayang Sdn Bhd [2014] 10 MLJ 593 had considered whether there was valid acceptance when the offeree in accepting the offer, had added new terms to the draft sale and purchase agreement and it was held that by introducing new terms, the offeree was making a counter-offer thereby reversing its role from being an offer to that of an offeror. The non-payment of the deposit by Defendant had been testified by Plaintiff’s own witnesses, SP1 and SP2 who is the Director of Sales of the Plaintiff (page 62 of Appeal Record). [33] This Court viewed that where a different payment terms are stated by the Defendant that would be a counter-offer by the Defendant. The fact remains that the terms of payment proposed by the Defendant was not accepted by Translite which proves to show that there was no acceptance of the Quotation by the Defendant. 19 [34] Clearly there was no consensus ad idemas the certainty of terms to a contract had not been agreed following section 7 of Contracts Act 1950and in support of this view, the Courtrefers to the authority attributed by the Defendant’s counsel, The Ka Wah Bank Ltd v Nadinusa Sdn Bhd & Anor [1998] 2 CLJ 486 and Philip Bell Booth & Anor v Navaratnam Navayanan [2017] 3 MLRA 231. [35] The Plaintiff’s witness testified that the acceptance made by Defendant was made orally by the Defendant’s employee, one Mr. Lim and Mr. Ali. There was no reference to such communication between Plaintiff and Mr. Lim and/or Mr. Ali in any of the correspondences. It was testified that the Plaintiff was dealing with Mr. Ali and Mr. Lim (page 58 of Appeal Record). It is the Plaintiff’s assertion that the acceptance was by the Defendant through Mr. Ali and Mr. Lim. This Court viewed that the principle of adverse inference under section 114(g) of Evidence Act 1950 should be invoked against the Plaintiff for failing to call Mr. Ali and Mr. Lim to testify, to throw some light on the alleged contract made between the Plaintiff and the Defendant. [36] There was no explanation as to the acceptance method testified by Plaintiff where the specifications and payment terms still differ even after the issuance of the 2nd Quotation. The Defendant’s payment terms is 60 days where the Quotation speaks of 30% deposit and LC and the 2nd Quotation stated 60 days post-dated cheque. In fact, the Plaintiff agreed that there was a slight difference between the specification, quantity and payment terms of the 2nd Quotation from the Quotation first offered to the Defendant (pages 65-66 of Appeal Record). 20 [37] In relation to the advancement of RM500,000.00, the fact is clear that it was never part of the terms of the Quotation nor in the 2nd Quotation (pages 75 - 76 of Appeal Record). Based on the oral evidence of Plaintiff’s witnesses, the Quotation and 2nd Quotation, it can be confirmed that such advancement was an arrangement between the Plaintiff and Translite (page 55 and page 75 of Appeal Record). None of the dealings and letters between the Plaintiff and Translite were copied to the Defendant or informed the Defendant (pages 87-89 of Appeal Record). [38] This court also made a finding that the advance payment of RM500,00.00 could not be established as there was no proof that the Plaintiff actually purchased the Goods from Translite as testified by Plaintiff’s witness. Further, this Court finds that there is discrepancy between the testimonies of the Plaintiff’s witnesses, SP1 and SP2 as to the purpose of the advancement where SP1 testified that it is for deposit payment and SP2 testified that it is for deposit and part payment of the Goods (pages 55, 74 - 75 of Appeal Record). [39] This Court rely on the Federal Court case of Pernas Trading Sdn Bhd v Persatuan Peladang Bakti Melaka [1979] 1 LNS 65 where oral evidence that contradicts, vary or add to or from the terms of any contract which has been reduced in writing is not admissible. The law is stipulated under section 92 of Evidence Act 1950: “92. Exclusion of evidence of oral agreement When the terms of any such contract, grant or other disposition of property, or any matter required by law to be reduced to the 21 form of a document, have been proved according to section 91, no evidence of any oral agreement or statement shall be admitted as between the parties to any such instrument or their representative in interest for the purpose of contradicting, varying, adding to, or subtracting from its terms ….” [40] It is trite law that the party who asserts must prove. This suit was brought by the Plaintiff. The Plaintiff bears the burden to prove on the balance of probability following section 101 of Evidence Act 1950 and this Court also rely on the authority attributed by the Defendant’s counsel, the case of Hong Yik Trading v Liziz Plantation Sdn Bhd [2017] 4 MLRA 89. This Court also rely on the Federal Court’s case of Letchumannan Chettiar Alagappan@ L Allagappan (as executor to SL Alameloo Achi alias Sona Lena Alamelo Acho, deceased) & Anor v Secure Plantation Sdn Bhd [2017] 4 MLJ 697which also deliberated on the burden of proof and the onus or evidential burden that keeps shifting between parties. [41] Upon reading the Appeal Record, the written submissions and having heard both counsels, this Court holds the view that based on balance of probabilities, the Plaintiff could not adduce evidence that there was an acceptance by the Defendant to the Quotation. Hence, the Plaintiff could not prove that a contract was formed. This Court also holds the view that the 2nd Quotation could not be a contract as there was no proof of agreed revised terms by both parties. [42] This Court evaluated the Quotation, the Defendant’s Purchase Order, the 2nd Quotation and the correspondence between Plaintiff and the 22 Defendant and this Court is also of the view that the evidence shows that the 2nd Quotation provides different specifications, quantity and terms and conditions from the Quotation and there was no shred of evidence adduced by the Plaintiff to prove that the Defendant had agreed to the terms of the 2nd Quotation. Essentially, a contract cannot be held as performed,when the subject matter of the contract have yet to be agreed and finalized by parties before delivery. [43] In view of the non-formation of contract between the Defendant and the Plaintiff, the Plaintiff is not entitled to the storage charges. In addition, there was no proof to show that the Goods weresold and delivered to the Plaintiff’s warehouse. The documents produced to support Plaintiff’s assertion which are at pages 171, 172 and Bankers Acceptance at page 173 of Appeal Record are doubtful as they did not bear the Defendant’s name which could not prove that the Goods were indeed sent and paid on behalf of the Defendant. [44] The said documents are further corroborated by the Plaintiff’s own witness, SP2’s oral evidence that Defendant’s name is not included (page 75 of Appeal Record) and SP2 also admitted that there were no charges imposed by Translite and the Plaintiff did not forked out any money for the storage charges (page 76 -77 of Appeal Record). [45] In view of the Court’s finding of facts, there is clearly a misdirection of fact and law by the Session Judge which requires this Court’s intervention to put things right and correct the decision of the lower court: Gan Yook Chin (P) & Anor v Lee Ing Chin @ Lee Teck Seng 23 [2005] 2 MLJ1. I could not resist to state that the oral evidence of the Plaintiff’s witnesses tested with the contemporaneous documents, did not support the Plaintiffs testimonies and hence did not support Plaintiff’s pleaded case. Based on the foregoing, I allow the appeal with costs and reverse the Session Judge’s decision. Dated: 28 May 2018 (ZALITA BINTI ZAIDAN) Judicial Commissioner Shah Alam High Court 24 PEGUAMCARA PERAYU / DEFENDAN GODFREY D’CRUZ Tetuan Godfrey D’Cruz& Co. Unit 721, 7th Floor, Lobby 6 Blok A, DamansaraIntan No. 1, Jalan SS 20/27 47400 Petaling Jaya Selangor Darul Ehsan [Ref: 1.17.LD.067.KLS/LIM] Tel: 03-7710 5062 / 3 Faks: 03-7710 5069 PEGUAMCARA RESPONDEN / PLAINTIF JOLYN CH’NG Tetuan Lee Ong & Partners 29-1, Jalan 20/14 Taman Paramount 46300 Petaling Jaya Selangor Darul Ehsan [Ref: 1001-12341/2/CKT/AT/RN/sl] Tel: 03-7877 9395 / 03-7877 9397Faks: 03-7877 9289