LIM Zi Hwei v Ingress Swede Automobile Sdn Bhd (WA-A72NCvC-3126-05/2023)

The Plaintiff seeks to recover RM 13,632.00 in special damages, along with general damages to be assessed by this court, for pain and suffering allegedly caused by the Defendant’s breach of duty of care and contractual obligations. These breaches arose in the context of the Defendant's role as the Plaintiff's service advisor responsible for servicing and repairing the Plaintiff’s motor vehicle, a Volvo XC60, registered as VGQ 1107 (hereinafter referred to as “the said vehicle”).

On 8th of May 2023, the Plaintiff, through her solicitor, Messrs. Zi & Associates, issued a notice of demand seeking payment of the claimed amount. Despite this, the Defendant failed to respond or comply with the demand, prompting the filing of this suit to pursue the claim. 26/12/2024 12:08:09 WA-A72NCvC-3126-05/2023 Kand. 107 S/N v91t59tmk02xmGBDAi3x1w **Note : Serial number will be used to verify the originality of this document via eFILING portal 2 | ALASAN PENGHAKIMAN W A - A 7 2 N C v C - 3 1 2 6 - 0 5 / 2 0 2 3

Upon entering his appearance, the Defendant proceeded to file an amended counterclaim on 9th of August 2023, seeking, inter alia, reliefs such as general damages of RM 50,000.00 for alleged loss of reputation.

After considering the pleadings, evidence, and submissions, the court rejected both the Plaintiff's claim and the Defendant's counterclaim. The reasons for the court’s decision are outlied below. [B] Agreed Facts.

It was agreed that the Plaintiff, a lawyer and owner of a Volvo XC60, took her vehicle to the Defendant’s service center on 29th of March 2023. During the visit, the Defendant asked the Plaintiff if she wished to include additional services, such as tire alignment and balancing. The Plaintiff agreed to the additional services.

It was further agreed that the Plaintiff paid RM 230.00 for the completed additional services.

Additionally, it was agreed that on 25th of April 2023, the Plaintiff contacted the Defendant's service advisor, who then requested the Plaintiff to schedule an appointment and return the vehicle to the service center. S/N v91t59tmk02xmGBDAi3x1w **Note : Serial number will be used to verify the originality of this document via eFILING portal 3 | ALASAN PENGHAKIMAN W A - A 7 2 N C v C - 3 1 2 6 - 0 5 / 2 0 2 3

It was also not disputed that the Plaintiff had issued a notice of demand via her solicitor on the 8th of May 2023. [C] Issues to be Tried.

There are 10 issues raised by the parties for this court’s consideration, such issues are tabulated as per below: Issues to be Tried A. Plaintiff’s claim

Whether there was a contract between parties for the tire alignment and balancing of the said vehicle?

Whether the Defendant had misrepresented the Plaintiff of her car’s condition?

Whether there was a breach of duty of care and contractual obligation by the Defendant?

Whether the Defendant is liable to the Plaintiff’s claim as pleaded at paragraph 24 of Enclosure 6?

Whether the Plaintiff is entitled to her claim as pleaded at paragraph 24 of Enclosure 6?

Whether it was due to the Defendant’s breach of his duty of care amounted to the damages suffered by the Plaintiff? S/N v91t59tmk02xmGBDAi3x1w 4 | ALASAN PENGHAKIMAN W A - A 7 2 N C v C - 3 1 2 6 - 0 5 / 2 0 2 3

If issue (6) is in the affirmative, whether the Plaintiff had contributed to the damages suffered? B. Defendant’s claim-claim 8. Whether the Plaintiff has acted mala fide for the purpose to give bad reputation to the Defendant by publishing in an article Twentytwo13 dated 7th of June 2023?

Whether the Defendant had suffered damages as pleaded at paragraph 25 of his Counterclaim?

Whether the Defendant is entitled to damages as pleaded at paragraph 25 of his Counterclaim? [D] List of Witnesses Called and Exhibits [10] For ease of reference, here are the witnesses called by parties as follow: Name of Witness Label A. Plaintiff’s Witness 1. Lim Zi Hwei SP1

Vincent Chen Wei Jie SP2

Chong Joo Leong SP3 N/A B. Defendant’s Witness S/N v91t59tmk02xmGBDAi3x1w 5 | ALASAN PENGHAKIMAN W A - A 7 2 N C v C - 3 1 2 6 - 0 5 / 2 0 2 3

Clement Wilson a/l Alphonsus Alfred SD1

Chan Yew Loon SD2

Ong Jia Xuan SD3

Victor Jok Karim SD4 PSD-4 [11] All cause papers are enlisted and labelled as follow: Cause Papers Enclosure Label 1. Bundle of Pleadings 41

Common Bundle of Documents 42

Common Bundle of Documents (Vol. 2) 59 B1 4. Plaintiff’s Bundle of Documents 69 B2 5. Defendant’s Bundle of Documents 60 B3 6. Defendant’s Additional Bundle of Documents (Vol.1) 56 B4 7. Defendant’s Additional Bundle of Documents (Vol. 2) 57

Issues to be tried 43

Agreed Facts 44

Summary of the Plaintiff’s case 46 E S/N v91t59tmk02xmGBDAi3x1w 6 | ALASAN PENGHAKIMAN W A - A 7 2 N C v C - 3 1 2 6 - 0 5 / 2 0 2 3

Summary of the Defendant’s case 40 F [12] It is to be noted that all documents, besides items 1 to 3, Part C of Enclosure B3, are B type documents hence no issue on the originality of the said documents in dispute here. [13] The documents for Part C are listed and marked as in the table below: No. Cause Papers Pages/Bundle of Documents Exhibit 1. Alignment and Service Balancing 81 to 83 of B3 IDD-1/ convert to D1 Note: The reasons will be explained in the following paragraph 2. A Certificate under Section 90A of the Evidence Act 1950 [Act 56] Enclosure 77 IDD-2A/ convert to D2A Note: The reasons will be explained in the following paragraph 3. A Certificate under Section 90A of the Evidence Act 1950 [Act 56] Enclosure 76 IDD-2B/ convert to D2B S/N v91t59tmk02xmGBDAi3x1w 7 | ALASAN PENGHAKIMAN W A - A 7 2 N C v C - 3 1 2 6 - 0 5 / 2 0 2 3 Note: The reasons will be explained in the following paragraph 4. Repair Order #509973 86 to 89 of B3 IDD-3/ convert to D3 Note: The reasons will be explained in the following paragraph 5. Repair Order #509601 77 to 80 of B3 D4 [14] Considering the document referenced above, the objection to submitting the IDDs to this court was based on allegations of forgery. The learned counsel for the Plaintiff cited the case of Lee Teck Lip v Lee Kok Tian & Anor [2021] MLJU 1604, arguing that the Defendant had failed to meet the burden of proving the authenticity of the disputed signature. However, this court does not concur with that submission. [15] Firstly, this court wishes to highlight that the learned counsel for the Plaintiff has misconstrued the allocation of the burden of proof in this case.The relevant passage from Lee Teck Lip clearly establishes that the burden of proof lies with the party alleging forgery. Here, it is evident that the Plaintiff, rather than the Defendant, has raised the forgery claim, setting this case apart from the facts in Lee Teck Lip. S/N v91t59tmk02xmGBDAi3x1w 8 | ALASAN PENGHAKIMAN W A - A 7 2 N C v C - 3 1 2 6 - 0 5 / 2 0 2 3 [16] Secondly, the Plaintiff’s reliance in the case of Lee Teck Lip itself ultimately shoots their case in the foot, rather than bolstering the Plaintiff’s case, it inadvertently supports the Defendant’s position. The duty is on the Plaintiff to provide evidence of forgery, such as a police report or signature samples for the court's comparison, rests with the Plaintiff. However, it was observed that the Plaintiff has failed to discharge his burden of proof here. [17] This court instead concurs with the submissions made by the Defendant's counsel, affirming that it is mandatory for this court to admit documents tendered under Section 90A of Act 56, provided the conditions set forth in the section are met by the parties wishing to present such documents. This is supported by the cases of Mok Yii Chek v Sovo Sdn Bhd [2016] 1 LNS 448 and the case of KTL Sdn Bhd v Leong Oow Lai [2011] MLJU 1405. [18] Since it was established that both IDD-2A and IDD-2B were tendered through SD1 and SD2, confirming that they had reasonable control and management over the computer from which IDD3 and IDD1 were printed, this court finds that the Defendant has met the requirements under Section 90A of Act 56. The Plaintiff has failed to challenge the presumption granted by this section, as discussed in paragraph 16 of this judgment. Citing the cases of Mok Yii Chek and KTL Sdn Bhd, finds that it is mandatory for this court to accept IDD1 and IDD3 as exhibits. Accordingly, they are recorded as such. S/N v91t59tmk02xmGBDAi3x1w 9 | ALASAN PENGHAKIMAN W A - A 7 2 N C v C - 3 1 2 6 - 0 5 / 2 0 2 3 [E] Parties Case. i. Plaintiff’s Case [19] It was the Plaintiff’s pleaded case that as a litigator and an owner of a Volvo XC60, sent her vehicle to the Defendant's service center for annual maintenance on 29th of March 2023. The Defendant’s service advisor recommended additional services like tire alignment and balancing, for which the Plaintiff paid RM230.00. However, after experiencing issues with the vehicle pulling to the left and the steering not being straight, the Plaintiff contacted the service advisor on 25th of April 2024. [20] Despite returning the vehicle for further inspection on 27th April 2023, communication issues arose as the Plaintiff received delayed updates on her car’s status. Even after multiple follow-ups, the problem persisted. On 3rd of May 2024, the Plaintiff returned the vehicle, noting new damage to the steering cover and gear knob. [21] On the 5th of May 2023,the Plaintiff reported that the tire alignment was still unsatisfactory, prompting the service advisor to offer a refund of RM230.00 and advise taking the car elsewhere. A mechanic at another service center later confirmed that the alignment and balancing had been improperly done. Throughout the process, the Plaintiff repeatedly had to initiate contact to receive updates from the Defendant’s service advisor. S/N v91t59tmk02xmGBDAi3x1w 10 | ALASAN PENGHAKIMAN W A - A 7 2 N C v C - 3 1 2 6 - 0 5 / 2 0 2 3 [22] The essence of the Plaintiff's claim revolves around an alleged breach of contract and duty of care. the Defendant’s actions The Defendant's actions are said to have caused substantial time, financial, and emotional losses for the Plaintiff, leading to the initiation of the current legal action against the Defendant. [23] The gist of the Plaintiff’s argument centers around alleged misrepresentation and failure by the Defendant to fulfill contractual obligations via the Defendant’s service advisor. It was further alleged that the said advisor falsely claimed that the car was being test-driven and that alignment services were being performed, when in reality, no action was taken for an extended period. As a result, the Plaintiff claims to have suffered ongoing losses. ii. Defendant’s Defence and Counter Claim [24] The Defendant, however, had vehemently denied all of the Plaintiff's allegations and argued that the alleged issues, such as the "vehicle pulling to the left and the steering not being straight," were unlikely. The Defendant pointed out that there was a 39-day gap between the alignment service and the complaint, along with a significant increase in mileage of 2,290 kilometers during that period. [25] In this regard, the Defendant contended that they had discharged their responsibility by providing alignment and balancing services vis-a-vis a third-party provider, Lim Tayar. S/N v91t59tmk02xmGBDAi3x1w 11 | ALASAN PENGHAKIMAN W A - A 7 2 N C v C - 3 1 2 6 - 0 5 / 2 0 2 3 They further asserted that any issues with alignment might have arisen due to external factors beyond the Defendant’s control. [26] The Defendant also argued that the Plaintiff had not presented adequate evidence to substantiate the damages or losses alleged. Additionally, the Defendant questioned the relevance of the Plaintiff’s witnesses and asserted that the Plaintiff's claims were speculative and lacked solid proof. [27] In conclusion, the Defendant maintains that the Plaintiff's case is devoid of substantial evidence, particularly concerning the claims of damages and misrepresentation. The Defendant further asserts that he has fully discharged his obligations and that any persistent issues with the vehicle may have been caused by external factors. Moreover, he emphasizes the Plaintiff's inability to present sufficient evidence to support her monetary claims, arguing that these claims are speculative and should be dismissed by the court. [C] Findings [28] After perusing through the Notes of Evidence, pleadings and submissions filed by parties, this court finds that the Plaintiff’s claim pertains to damages arising from the Defendant’s alleged failure to adequately service her vehicle. Additionally, the Plaintiff asserted that the Defendant’s misrepresentation of the vehicle’s condition resulted in significant losses for which she seeks compensation. S/N v91t59tmk02xmGBDAi3x1w 12 | ALASAN PENGHAKIMAN W A - A 7 2 N C v C - 3 1 2 6 - 0 5 / 2 0 2 3 [29] This court further observed that the Defendant, however, denies these claims, asserting that any issues with the vehicle may have resulted from external factors, given the 39-day lapse and an additional 2,290 kilometers driven between the service date and the subsequent complaint. The Defendant further contended that the Plaintiff has failed to present sufficient evidence to substantiate her claims. [30] In light of the aforementioned observation, this court concludes that the core issues in this case revolve around whether the Plaintiff can establish the Defendant’s breach of contract, the extent of the resulting damages, and the proximity of those damages to the alleged breach. [31] Before addressing the core issues, it is essential for this court to determine the relevance of SP2's testimony, particularly as recorded at page 49 of this Court's Notes of Proceedings. The essence of SP2's testimony pertained to SP2’s dissatisfaction with the services provided by the Defendant. [32] With the above issue at hand, this court refers to the case of In the case of Al-Rajhi Banking and Investment Corporation (Malaysia) Berhad v. MLC Shipbuilding Sdn Bhd & Ors [2012] 1 CLJU 1035 which was referenced by the Learned Counsel for the Defendant where her Ladyship Hasnah Mohamad Hashim J, (as she was then, now CJM) had observed that for an evidence to be admitted by the court, the court must test the evidence of the witness against the probabilities of the case. S/N v91t59tmk02xmGBDAi3x1w 13 | ALASAN PENGHAKIMAN W A - A 7 2 N C v C - 3 1 2 6 - 0 5 / 2 0 2 3 [33] Based on the testimony and case mentioned above, this court finds SP2’s testimony regarding the missing fuel cap and his so-called dissatisfaction with the Defendant’s services to be irrelevant as it does not fulfill the requirement under Section 136 of the Evidence Act 1950 [Act 56]. [34] Such findings was made based on, firstly, the incident involving SP2 pertains to a missing fuel cap, which is unrelated to the issue of unsatisfactory tyre alignment. Secondly, while SP2’s evidence addresses missing parts, accessories, and an absorber—complained of for four months after SP2 retrieved her vehicle from the Defendant (i.e., from 30th January 2023 to 27th April 2023)—it does not constitute a critical basis for this court to conclude that the Defendant breached any contractual obligations. [35] Regarding the cases cited by the Learned Counsel for the Plaintiff on the probative value of evidence, this court finds that, unlike the case of Pannir Selvam a/l Sinnaiyah & Anor v Tan Chia Foo & Ors [2021] 7 MLJ 384, the evidence provided by SP2 concerning the missing fuel cap and absorber does not exhibit striking similarities under section 136 of Act 56. This conclusion stems from the fact that the issues pertain to a single instance of missing items or an unsatisfied customer, coupled with the allegation regarding the absorber, which remains unproven and too remote to establish a sufficiently high degree of probability indicative of a pattern within the scope of the referenced section. S/N v91t59tmk02xmGBDAi3x1w 14 | ALASAN PENGHAKIMAN W A - A 7 2 N C v C - 3 1 2 6 - 0 5 / 2 0 2 3 [36] Furthermore, this court observes that the present case is distinguishable from the circumstances in Pannir Selvam’s case. Firstly, this case pertains to dissatisfaction with work related to tyre alignment (handled by a third-party contractor) and the absorber (handled by the service centre itself). Secondly, occurrences such as missing accessories are not uncommon in service centres and therefore cannot be regarded as strikingly similar. [37] This court further notes that the actions of SP2 and the Plaintiff merely reflect pettiness in pursuing their claim against the Defendant. By bringing trivial matters to court, they have unnecessarily wasted the court’s time—an issue that could have been resolved simply through the Defendant returning the missing item as suggested via the Defendant’s witness. [38] Consequently, this court rejects SP2’s evidence. [39] Regarding the issues raised by the parties for trial, it was noted that issues (1) to (10) can be consolidated into two primary questions: whether the Defendant was responsible for the alleged breach of contract, and whether the affected parties are entitled to damages. [40] From this court’s observation, it was found that the crux of the Plaintiff’s action was for the recovery of damages due to unsatisfactory alignment service rendered by the S/N v91t59tmk02xmGBDAi3x1w 15 | ALASAN PENGHAKIMAN W A - A 7 2 N C v C - 3 1 2 6 - 0 5 / 2 0 2 3 Defendant. However, regarding the issue of misrepresentation, the court finds it irrelevant in this context. [41] What this court finds was that the Plaintiff's claim focuses on damages stemming from the Defendant's alleged breach of contract, with the misrepresentation cited relating to assurances made during the service. However, since these assurances were made during the service and not at the outset, this court observes that it would have been impossible for the alleged representation to have influenced the Plaintiff’s decision to enter into the contract with the Defendant. Thus, the issue of misrepresentation is deemed baseless. [42] With that being said, the issues to be tried is outlined as follows:

Whether the Defendant was responsible for the alleged breach of contract?

(ii) Whether the affected parties are entitled to damages? Issue (i) Whether the Defendant was responsible for the alleged breach of contract? [43] Upon reviewing the evidence and testimonies presented to this court, it is noteworthy that there was a gap of 27 days between the date the Defendant provided service to the Plaintiff's vehicle (i.e., on the 29th of March 2023) and the date complained of (i.e., on the 25th of April 2023) and not 39 days as alleged by the Defendant since the Defendant had acknowledges that they had received the said vehicle on the 25th of April 2023. S/N v91t59tmk02xmGBDAi3x1w 16 | ALASAN PENGHAKIMAN W A - A 7 2 N C v C - 3 1 2 6 - 0 5 / 2 0 2 3 [44] Regarding the significant mileage of 961 km as opposed to the 2,290 km over a 27- day period, the document on page 7 of Part B, which is an invoice from the Defendant, was later contested for its authenticity. This requires an immediate ruling on its admissibility before the court can proceed with determining issue (i). Sub-issue (a): Whether the Invoice from the Defendant dated 29th of March 2023 categorised at Part B of Bundle B be admitted as evidence? [45] Facing such situation, the Court of Appeal in Marappan a/l Muthusamy V R Sivam a/l Ramasamy [2014] 4 MLJ 428 made a following observation: “… The Federal Court in Jaafar bin Shaari & Anor (suing as administrator of the estate of Shofiah bte Ahmad, deceased) v Tan Lip Eng & Anor [1997] 4 CLJ 509 clarified the legal position in relation to document as evidence as follows: First and foremost, the agreed bundle of documents means that the documents therein are authentic and they do exist, therefore they require no proof of their authenticity by calling e.g., their makers. Secondly, the truth of contents of any of the documents in the agreed bundle of documents is always not admitted unless the contrary is indicated directly or indirectly and such truth of such contents is liable to be challenged in court at the instance of either of the parties. S/N v91t59tmk02xmGBDAi3x1w 17 | ALASAN PENGHAKIMAN W A - A 7 2 N C v C - 3 1 2 6 - 0 5 / 2 0 2 3 Thirdly, such documents therein do not form automatically a part of the evidence of the case in question ipso facto, but any of such documents does become part of such evidence if it is read or referred to by either of the parties, wholly or partly, at length or in a briefest of mention, either in examination of any witness, in submission at any stage or even on any unilateral drawing of court’s attention to it by either of the parties at any time before the conclusion of the case. Fourthly, at the end of the whole case, the truth of the contents of any of the document is up to the court to determine, regard being had, inter alia, to any absence of challenge by either of the parties on any part of the document and similarly, the question of weight, e.g., either great or no weight to be given to any part of any document is also a matter for the trial court, which considers the documents including any ‘written hearsay’ contained therein. The court, may refuse to give any weight at all to any document, but then it is accountable like in other matters, to the parties and to the appellate for reasons for such refusal…” (emphasis added) [46] In the case previously referenced, it was ruled that the truth of the contents of documents is not automatically presumed and can be contested by either party. The court may choose not to give weight to the documents included in the agreed bundles, and it is required to provide reasons for this decision. S/N v91t59tmk02xmGBDAi3x1w 18 | ALASAN PENGHAKIMAN W A - A 7 2 N C v C - 3 1 2 6 - 0 5 / 2 0 2 3 [47] Similarly, in the current case before this court, there is no dispute regarding the origin of the invoice. The issue in contention is the Plaintiff's signature on the payment receipt, which the Plaintiff claims was forged. A police report, reference Brickfields 13870/2023, was filed by the Plaintiff concerning this matter, but there have been no further updates on the investigation of such report lodged. [48] In light of this, the court examines page 7 of Bundle B and concludes that its purpose is to show the mileage of the Plaintiff’s vehicle to establish the timeline between the date of service and the date the Plaintiff filed the complaint, rather than to prove the Plaintiff’s consent. [49] Given that the invoices' significance lies in demonstrating the vehicle’s odometer reading on the service date and considering that the Plaintiff does not dispute the invoice details—such as the service date and total amount due—the court accepts the contents of the invoice on page 7 as accurate and gives weight to this evidence, in accordance with the Federal Court's ruling in.Jaafar bin Shaari. [50] As such, this court finds that the answer to sub-issue (a) as admissible. [51] Reverting back to issue (i), the court finds that there was a gap of 961 kilometers and a 29-day interval between the date the alignment service was performed ( i.e., on 29th of March 2023) and the date the rectification of the Plaintiff’s vehicle alignment was carried out (i.e., on 27th of April 2023). S/N v91t59tmk02xmGBDAi3x1w 19 | ALASAN PENGHAKIMAN W A - A 7 2 N C v C - 3 1 2 6 - 0 5 / 2 0 2 3 [52] Consequently, the court finds that the Plaintiff's complaint regarding the vehicle pulling to the left and the steering being misaligned is too remote. This conclusion is based on the evidence provided by both parties, including the service date, the date the Plaintiff lodged her complaint, the dates the vehicle was sent to the Defendant and subsequently to Keat Cheang Auto Service Centre, and the odometer readings. These readings were taken from the Defendant's invoices (pages 7 of B and 86 of B3) and the invoice from Keat Cheang Auto Service Centre (page 34 of Bundle B), which recorded an additional 1,329 kilometers from the date of the adjustment (27th April 2023). [53] The court, therefore, concludes that the Plaintiff has not proven any breach by the Defendant, as she failed to establish that the issues of the vehicle pulling to the left and the misaligned steering were directly attributable to the Defendant's actions. [54] As such, the answer to issue (i) is negative. Issue (ii) Whether the affected parties are entitled to damages? [55] Although the court has ruled in the negative on issue (i), this court proceeds to examine the matter as if it had reached a contrary conclusion. S/N v91t59tmk02xmGBDAi3x1w 20 | ALASAN PENGHAKIMAN W A - A 7 2 N C v C - 3 1 2 6 - 0 5 / 2 0 2 3 [56] It was observed that the Plaintiff is claiming for RM 230.00 sum of monies paid for the alignment work done by the Defendant and RM 280.00 being the cost to correct the said alignment of her vehicle by a third party known as Keat Cheong Auto Service Center. [57] It was further observed that these two claims could be categorized as special damages therefore it is incumbent for the Plaintiff to specifically plead thereafter prove that such damages was actually incurred by presenting relevant documents, such as receipts, as evidence to support such claim (the Court of Appeal case of Bekalan Sains P & C Sdn Bhd v Bank Bumiputra Malaysia Berhad [2011] 5 MLJ 1 is referred to) to which she had done so via SP3’s testimony and page 34 of B for the amount of RM

280.00. [58] Be it as it may, since such a payment of RM 230.00, the requirement as in the case of Bekalan Sains P & C Sdn Bhd’s case is therefore waived. [59] Based on the aforementioned findings, this court further observed that regarding the claim to refund the amount of RM 230.00 and an additional sum of RM 280.00 paid to Keat Cheong Auto Service Center, to allow both of these limb of damages tantamount to an attempt to unjustly enrich the Plaintiff. [60] Facing such stalemate, this court refenced to the case of GDP Architects Sdn Bhd v Universiti Teknologi MARA [2016] MLJU 943 where the court had made the following observations: S/N v91t59tmk02xmGBDAi3x1w 21 | ALASAN PENGHAKIMAN W A - A 7 2 N C v C - 3 1 2 6 - 0 5 / 2 0 2 3 “…[46] I can do no matter than to refer and rely on the recent decision of the Court of Appeal in Tanjung Teras Sdn Bhd v Government of Malaysia [2015] 9 CLJ 1002 where the court found that “ section 71 is the statutory embodiment of the common law principle of quantum meruit, which provides for a just compensation as a measure of the work done as opposed to contractual damages”. More important is the view of the Court that: ‘Liability under S 71 is not based on any existing contract between the parties. Rather it is based on the equitable principle of conscionable conduct and restitution to prevent unjust enrichment by one party at the expense of another party’ …” (Emphasize added) [61] Turning to the present case, the court finds that if issue (i) is successfully proven, the repair work undertaken by Keat Cheong Auto Services Center to rectify the Defendant's error provided a direct benefit to the Defendant, who was responsible to rectify such. [62] Furthermore, the court further finds that the engagement of a third party (Keat Cheong Auto Services Center) to perform the repairs does not alter the fact that the Plaintiff did not intend for the work to be carried out gratuitously. Looking at the facts mentioned above, this is a classic case where doctrine of quantum meriut is appropriately applicable for this court's consideration. S/N v91t59tmk02xmGBDAi3x1w 22 | ALASAN PENGHAKIMAN W A - A 7 2 N C v C - 3 1 2 6 - 0 5 / 2 0 2 3 [63] Accordingly, the court concludes that if issue (i) is decided in the affirmative, the Plaintiff is entitled to only recover the amount of RM 230.00, along with an additional RM

50.00 as damages. This represents the difference between the amount paid for the

Defendant's services (RM 230.00) and the expense incurred for the repair work (RM 00). This conclusion is grounded in the principle of quantum meruit as stipulated uunder section 71 of the Contracts Act 1950 [Act 136] and is further supported by a decision in a Privy Council case of Siow Wong Fatt v Susur Rotan Mining Ltd & Anor [1967] 2 MLJ 118. [64] That said, the court finds that if issue (i) is resolved affirmatively, the Plaintiff is entitled to recover only RM 230.00 and an additional sum of RM 50.00, in accordance with the principle of “quantum meruit”. [65] The principle in Bekalan Sains P & C Sdn Bhd likewise applies to the Plaintiff's claims, which include RM 60.00 per visit for travel to the Defendant's center (approximately three visits), RM 44.00 for transportation to the Defendant's service center, and RM 18.00 for toll expenses. However, due to the absence of supporting evidence, these claims must fail. [66] With respect to the claim for RM 13,000.00, the court concludes that, in line with the decision in Sigma Glove Industries Sdn Bhd & Ors v Ong Chin Kok & Anor [2019] MLJU 1045, damages for time wasted in addressing an actionable wrong against a trading entity is a part of special damages. S/N v91t59tmk02xmGBDAi3x1w 23 | ALASAN PENGHAKIMAN W A - A 7 2 N C v C - 3 1 2 6 - 0 5 / 2 0 2 3 [67] Therefore, as the RM 13,000.00 claimed by the Plaintiff qualifies as special damages, it must be explicitly pleaded and supported with sufficient evidence before the court. [68] Considering the above, this court hereby refers to the case of Damansara Realty (Pahang) Sdn Bhd v Om Cahaya Mineral Asia Bhd [2021] 5 MLJ 1, in which the Plaintiff's claim was dismissed due to failure to specifically plead special damages in his pleadings. The court stated as follows: “…[156] The principle in relation to special damages is trite, i.e., it must be specifically pleaded (and particularized) and strictly proven. In Ong Ah Long (supra), Justice Syed Agil Barakbah FCJ (pages 327-328) speaking for the Federal Court explained the principle in the following words:- "It is a well-established principle that special damages in contrast to general damages, have to be specifically pleaded and strictly proved. They are recoverable only where they can be included in the proper measure of damages and are not too remote (see Halsbury's Laws of England 4th edition, volume 11 page 218 para 386). That in our view is the cardinal principle adopted by all courts both in England and this country. The same principle was adopted by Ong Hock Thye, F.J. (as he then was) in Yee Hup Transport & Co and Anor v Wong Kong [1967] 2 MLJ 93 which was an appeal on quantum of damages. Quoting an excerpt from the judgment of Wilmer L.J. in Ilkiw v Samuels [1963] 1 WLR 991; [1963] 2 All ER 879 he held that the general damages should not be awarded as though they were special damages properly pleaded and proved. Similarly Chang Min Tat, F.J. (as he then was) in Murtadza bin Mohamed Hassan v Chong Swee Pian [1980]1 MLJ S/N v91t59tmk02xmGBDAi3x1w 24 | ALASAN PENGHAKIMAN W A - A 7 2 N C v C - 3 1 2 6 - 0 5 / 2 0 2 3 216 applied the principle in Ilkiw v. Samuels ( supra) that special damages if pleaded as in that case could be recovered. The principle was also adopted by Mohamed Azmi, J. (as he then was) in Sam Wun Hoang v Kader Ibramshah [1981]1 MLJ 295 in the Federal Court. [157] In Ilkiw v Samuels [1963] 2 All ER 879; [1963] 1 WLR 991, 107 Sol Jo 680 CA 1950 Diplock LJ (page 890 All ER):- As regards the question of damages, I would put it in this way. Special damage in the sense of a monetary loss which the plaintiff has sustained up to the date of trial must be pleaded and particularised. ........ In my view, it is plain law - so plain that there appears to be no direct authority, because everyone has accepted it as being the law for the last hundred years - that one can recover in an action only special damage which has been pleaded, and, of course, proved…”(Emphasize added) [69] Applying the above principle, the court finds that the Plaintiff’s pleading does not provide an explanation for how the RM 13,000.00 claimed as special damages was calculated. Furthermore, this amount is referenced only once in the Plaintiff’s claim, specifically in paragraph 22(g) of Enclosure 6. [70] Applying the principle enumerated in the Court of Appeal case of Damansara Realty (Pahang) Sdn Bhd, the court finds that the Plaintiff's failure to plead the calculation of the RM 13,000.00 claim is fatal to her case. S/N v91t59tmk02xmGBDAi3x1w 25 | ALASAN PENGHAKIMAN W A - A 7 2 N C v C - 3 1 2 6 - 0 5 / 2 0 2 3 [71] This court further finds that any evidence presented at trial, including evidence that was not properly submitted, must be disregarded, as the Plaintiff did not specifically plead this matter. This aligns with the ruling in Yeah Eh Farn v Alliance Bank (M) Bhd [2014] 3 CLJ 803, where it was held in paragraph 17 of the judgment that evidence of unpleaded special damages cannot be admitted and is therefore irrecoverable. [72] The court concludes that the claim for this portion of damages, totaling RM 13,000.00, must be dismissed due to a lack of sufficient evidence. [73] Regarding the claim for exemplary and aggravated damages, this court hereby refers to the case of Shim Yen Lin v Cedric Wong King Ti [2022] MLJU 2370 where the court made the following observations: “…[174] It is not disputed that exemplary damages is not pleaded or particularised in the Amended Statement of Claim. It has been held by the Court that the failure to plead and provide the necessary particulars of exemplary damages is fatal. In Shen & Sons Sdn Bhd v Jutawarna Development Sdn Bhd & Ors [2015] 8 CLJ 125, the High Court held: ‘(3) The failure to specifically claim aggravated and/or exemplary damages as a relief was not necessarily fatal. It was desirable that it be claimed as a specific relief in the statement of claim. It is however mandatory for a party claiming aggravated and/or exemplary damages to set out the requisite S/N v91t59tmk02xmGBDAi3x1w 26 | ALASAN PENGHAKIMAN W A - A 7 2 N C v C - 3 1 2 6 - 0 5 / 2 0 2 3 particulars in the statement of claim to support a claim for aggravated and/or exemplary damages. The failure to provide the necessary particulars for aggravated and/or exemplary damages was fatal…” (Emphasize added) [74] In the case of Ang Beng Choo v. RHB Insurance Berhad [2013] 1 LNS 382, it was further observed that aggravated damages are generally not awarded for a breach of contract (such as in the present case, the failure to provide proper alignment services), and exemplary damages are not typically granted in contractual claims. [75] Therefore, given that the breach was not successfully proven in this court, and the Plaintiff has failed to provide the necessary details to support the claim for such damages, coupled with the court's stance of not granting such damages in contractual cases, the court finds that the Plaintiff is not entitled to these limb of damages. [76] In light of the above, the answer to issue (ii) is negative. If the court were to rule in the affirmative on issue (i), the Plaintiff would be entitled only to RM 280.00 as damages for the alignment work performed. [77] This court also wishes to note that, despite the Defendant filing a counterclaim in this action, there was, first, no evidence presented to support the Defendant's claim and damages, and second, the cause of action involving defamation falls outside the jurisdiction of this court, as outlined in the Chief Registrar’s Circular Number 2 of 2018. Consequently, the Defendant’s counterclaim is dismissed. S/N v91t59tmk02xmGBDAi3x1w 27 | ALASAN PENGHAKIMAN W A - A 7 2 N C v C - 3 1 2 6 - 0 5 / 2 0 2 3 [D] Decision [78] In a nutshell, based on the above observations, this court finds that the Plaintiff has failed, on the balance of probabilities, to prove that the incident of her vehicle pulling to the left and the steering not being straight was caused by the Defendant’s actions. As a result, she is not entitled to any of the damages claimed in relation to this matter. [79] Regarding the counterclaim, this court finds that the Defendant has failed to prove his case on the balance of probabilities. This is due to the fact that his cause of action falls outside the jurisdiction of this court, and no evidence was presented to support the claim. [80] For the reasons outlined above, this court dismisses the Plaintiff’s claim with costs of RM 5,500.00, pursuant to Order 59, Rule 23 of the Rules of Court 2012. The court's decision is based on the fact that the Plaintiff’s claim was a trivial matter that could have been settled by accepting the Defendant’s offer to return the funds and cover the costs, rather than involving unnecessary witnesses and submitting irrelevant documents to make a point, thereby wasting the court’s time on this insignificant issue. S/N v91t59tmk02xmGBDAi3x1w 28 | ALASAN PENGHAKIMAN W A - A 7 2 N C v C - 3 1 2 6 - 0 5 / 2 0 2 3 [81] Regarding the Defendant’s counterclaim, this court dismisses it with costs of RM

500.00 to be paid to the Plaintiff. On 26th of December 2024 Prepared by, NUR FADRINA BINTI ZULKHAIRI Magistrate Magistrate Court Sivil 8 Kuala Lumpur Counsel for the Plaintiff: Lim Meng Guan & Nur Sazierah Yusoff from Messrs. Zi & Associates. Counsel for the Defendant: Maisarah binti Tokiran, Nik Mohd Syakhir bin Mohd Yasin & Mohd Shahir bin Tahir from Messrs. Zain, Megat & Murad. S/N v91t59tmk02xmGBDAi3x1w