LOW XUE LI (Pemilik tunggal perniagaan yang dikenali sebagai TIONGER ENTERPRISE No. Pendaftaran Perniagaan. 201603223169 (002561432-W) v ASUWARIS SDN BHD (WA-11BM-1-12/2022)

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1 IN THE HIGH COURT OF MALAYA AT KUALA LUMPUR IN THE FEDERAL TERRITORY, MALAYSIA CIVIL APPEAL NO. : WA-11BM-1-12/2022 BETWEEN LOW XUE LI …APPELLANT/PLAINTIFF (NRIC No. : 890703-14-6039) (Sole proprietor of a trading TIONGER ENTERPRISE COMPANY NO. 201603223169/002561432-W) AND ASUWARIS SDN BHD ...RESPONDENT/DEFENDANT (COMPANY NO. : 209042-A) GROUNDS OF JUDGMENT INTRODUCTION [1]

Preamble

Pursuant to the Appellant’s request for the Respondent to supply and install certain toilet cubicles, the Respondent submitted a quotation for the said supply and installation works, to which was agreed upon by S/N kE1FT3UlYkkc6wGIlfdw the Appellant. The Appellant later found the works carried out by the Respondent did not comply with the agreed specifications. Despite the Appellant’s objection, the Respondent insisted for payments of the completed works which the Appellant refused. The Appellant sued the Respondent. The learned Magistrate dismissed the Appellant’s claim, hence this appeal before me. [2] Having considered the evidence and the documents before me as found in the Rekod Rayuan (“RR”), I allowed the appeal on the grounds as set out below. BACKGROUND [3] The Appellant was awarded a certain construction works at SJK (C) Jinjang Utara, Kepong, Kuala Lumpur (“Project”). As part of the Project, the Appellant requested the Respondent to supply and install certain toilet cubicles. [4] Based on a document dated 15.12.2021 issued by the Respondent to the Appellant called “Revised Quotation (2) (“Revised Quotation”), the Respondent agreed to supply and install “Asuwaris Toilet Cubicles Model ‘Scan 10’ at the Appellant’s project site at SJK (C) Jinjang Utara, as per S/N kE1FT3UlYkkc6wGIlfdw the specifications stated in the Revised Quotation (refer pp. 18, 19, 20 of the Rekod Rayuan Bahagian C (Enclosure 5)). The Revised Quotation shall be read together with the Terms and Conditions annexed thereto (refer p.20 of the Rekod Rayuan Bahagian C (Enclosure 5)). [5] The Appellant found that the specifications of the items installed by the Respondent were different from the agreed specifications under the Revised Quotation. The Appellant immediately objected to the said Works and inform the Respondent of the same. [6] Despite being aware of the Appellant’s objection to the said Works, and that both parties were in the midst of resolving the issues, the Respondent continued with the said Works and having contended that the said Works had completed, the Respondent issued a letter dated 12.1.2022 stating that the Respondent has completed the said Works as per the Revised Quotation. [7] The Appellant then filed a suit at the Kuala Lumpur Magistrate’s Court to claim damages and loss from the Respondent for the said Works which failed to comply with the agreed specifications. After a full trial, the learned Magistrate dismissed the Appellant’s claims. S/N kE1FT3UlYkkc6wGIlfdw FINDING [8] In exercising my appellate jurisdiction, I am reminded of the call made by Steve Shim (CJ Sabah & Sarawak, as he was then) in Gan Yook Chin & Anor v. Lee Ing Chin & Ors [2004] 2 MLRA 1 that I should be slow in disturbing the findings of the trial judge unless I found that there was insufficient judicial appreciation of evidence on the part of the trial judge. In that case His Lordship held: “[12] ... the central feature of appellate intervention ie, to determine whether or not the trial court had arrived at its decision or finding correctly on the basis of the relevant law and/or the established evidence. In so doing, the Court of Appeal was perfectly entitled to examine the process of evaluation of the evidence by the trial court. Clearly, the phrase "insufficient judicial appreciation of evidence" merely related to such a process. This is reflected in the Court of Appeal's restatement that a judge who was required to adjudicate upon a dispute must arrive at his decision on an issue of fact by assessing, weighing and, for good reasons, either accepting or rejecting the whole or any part of the evidence placed before him. The Court of Appeal further reiterated the principle central to appellate intervention ie, that a decision arrived at by a trial court without judicial appreciation of the evidence might be set aside on appeal. This is consistent with the established “plainly wrong” test.” [9] In Beldeu Singh v. Dr Kenneth Andrew [2009] CLJU 659; [2009] 1 LNS 659; [2011] 4 MLJ 769, the Court of Appeal in the same vein held that the appellate court should only reverse a decision of a trial judge S/N kE1FT3UlYkkc6wGIlfdw when it was found that the trial judge had clearly misdirected himself. The Court held: “[18] We are mindful of the fact that an appellate court does not have the audio visual advantage which the trial court has, in seeing, hearing and assessing the witnesses at the trial. Hence, an appellate court is not likely to reverse or depart from the trial judge's finding save where he has misdirected himself: see eg Owners of Steamship Hontestroom v. Owners of Steamship Sagaporack [1927] AC 37, 47 (HL); China Airlines Ltd v. Maltran Air Corp Sdn Bhd (formely known as Maltran Air Services Corp Sdn Bhd) and another appeal [1996] 3 CLJ 163; [1996] 2 MLJ 517, 527E, 527I and 528A-B (FC); Powell and Wife v. Streatham Manor Nursing Home [1935] AC 243 at p 250 (HL) which was followed in Chow Yee Wah & Anor v. Choo Ah Pat [1978] CLJU 32; [1978] 1 LNS 32; [1978] 2 MLJ 41 at p 42 (PC).” [10] That principle above was reaffirmed by the Federal Court in UEM Group Bhd v. Genisys Integrated Engineers Pte Ltd & Anor [2010] 9 CLJ 785 where Raus Sharif FCJ (as he then was) opined: “[26]...... It is well settled law that an appellate court will not generally speaking, intervene with the decision of a trial court unless the trial court is shown to be plainly wrong in arriving at its decision. A plainly wrong decision happens when the trial court is guilty of no or insufficient judicial appreciation of evidence. (See Chow Yee Wah & Anor v. Choo Ah Pat [1978] CLJU 32; [1978] CLJU 32; [1978] CLJU 32; [1978] 1 LNS 32; Watt S/N kE1FT3UlYkkc6wGIlfdw or Thomas v. Thomas [1947] AC 484; and Gan Yook Chin & Anor v. Lee Ing Chin & Ors [2004] 4 CLJ 309)" ...... [40] Speaking on appellate intervention, we feel a need to remind that a trial judge has the advantage over an appellate court in hearing the witness and observing his demeanour. Thus, a finding on a witness's credibility based on his demeanour is a personal opinion of a trial judge who had the audiovisual advantage of the performance of witnesses. It should not, ordinarily be disturbed at the appellate stage. This is especially so in the instant case where the trial judge had found that Seow, the only witness put forth by GIE, was not a witness of truth. The trial judge had given reasons as to why he found that "Seow's evidence is bristled with inconsistencies and half truth". We think in the circumstances of the reasons given by the trial judge, the findings are entitled to great respect.” [11] I had reversed the learned Magistrate’s decision as I found that her grounds in dismissing the Appellant’s claims was a plainly wrong decision due to her insufficient judicial appreciation of evidence before her. [12] That the total heights of the eight (8) sets of toilet cubicles set up by the Respondent were different from the quotation was not disputed. The Respondent's counsel confirmed this fact before this Court during the hearing of this appeal. S/N kE1FT3UlYkkc6wGIlfdw [13] SD2 also admitted in his evidence that the installed cubicles were not according to specifications and SD2 agreed that the Respondent altered the specifications of the installed cubicles without any variation order agreed in writing by the Appellant (“VO”). [14] It was also clear that the learned Magistrate made a finding of fact on this issue, as seen in paragraph 26 of her GOJ. I found that she had erred in her finding when she concluded that the variation order done orally by the Respondent was valid and enforceable in law. [15] Items 2 and 3 of the Terms and Conditions annexed to the Revised Quotation provides that: “No representation or warranties shall be valid unless it is made in writing and signed by a Director of Asuwaris. .... Any additional works or additional materials which arises or requires shall be considered as Variation Order and shall be payable by the Client subject to the terms and conditions contained herein.” S/N kE1FT3UlYkkc6wGIlfdw [16] The above terms that governs the Works stated unequivocally that any form of representation or warranties made by either or both parties shall only be valid if made in writing. The Respondent specifically added in this term that any such representation or warranties on the part of the Respondent shall only be valid if it is in writing and signed by a director of the Respondent. The representation must include the VO. For the VO to be valid, it must be reduced to writing and for the part of the Respondent, that written VO must be signed by a director of the Respondent. [17] It must be emphasised that this Terms and Conditions were provided by the Respondent. The Respondent cannot now turn around and deny that the Respondent and the Appellant had agreed that oral agreement cannot effect the changes on the Works. [18] It is trite that the Contracts Act 1950 provides that a contract must comply with a particular requirements for it to be enforceable and legally binding, but it does not necessarily have to be in writing. But when parties to a contract specifically agreed that their respective representations shall be in writing, then they must comply with such requirement. If they decide to depart from that general agreement and that a certain form of representation on any part of the Works, such as the VO, can be agreed orally and need not be reduced into writing, they can do so provided S/N kE1FT3UlYkkc6wGIlfdw evidence is shown of such agreement to depart. That agreement to depart shall be in writing. [19] The Respondent alleged that they carried out the VO when the Appellant had agreed to the VO orally. No evidence was shown by the Respondent that the parties here had agreed that the part relating to VO in the Terms and Conditions is excepted from the general rule that all representations by parties shall be in writing. And no evidence was shown by the Respondent that the Appellant had in fact orally agreed for the VO to be carried out by the Respondent. [20] Based on the above findings, I agree with the Appellant’s counsel that the learned Magistrate had failed to direct her mind on the said Conditions No. 2 and 3 of the Terms and Conditions annexed to the Revised Quotation. [21] Section 91 of the Evidence Act provides that when the terms of a contract have been reduced, by consent of the parties, to the form of a document, no evidence shall be given in proof of the terms of the contract, except the document itself, or secondary evidence of its contents. S. of the Evidence Act provides that when the terms of any such contract reduced to the form of a document have been proved according to s. 91, S/N kE1FT3UlYkkc6wGIlfdw no evidence of any oral agreement or statement shall be admitted as between the parties to any such instrument or their representatives in interest for the purpose of contradicting, varying, adding to, or subtracting from its terms. The proviso to s. 92 says the existence of any distinct subsequent oral agreement, to rescind or modify any such contract, grant or disposition of property, may be proved except in cases in which the contract, grant or disposition of property is by law required to be in writing, or has been registered according to the law in force for the time being as to the registration of documents. [22] The proviso to s. 92 of the Evidence Act as set out above clearly does not apply in the Appellant’s favour as no evidence was offered to prove the existence of a subsequent oral agreement between the Appellant and the Respondent to modify the terms of Condition No. 3. [23] In Paul Murugesu s/o Ponnusamy (as representative of Nalamah d/o Sangapillay (deceased)) v. Cheok Toh Gong & Ors [1996] 2 CLJ 397; [1996] 1 MLJ 843, the Supreme Court held: “In the first place, both parties to an agreement are entitled to vary any term of the agreement, in writing, or orally, where oral evidence of such variation can of course be given, to quote s. 92(d) of the Evidence Act 1950, "save in cases in which the contract, grant or disposition of property is by law S/N kE1FT3UlYkkc6wGIlfdw required to be writing, or has been registered according to the law in force for the time being as to registration of documents". The above agreement is not of those excepted cases. It is important to remember that when it is sought to prove a variation, not by an express agreement, by a course of conduct, that both parties have understood the variation and intended to be bound by it. In the instant case, the variation in question was sought to be proved by a course of conduct, vide the evidence set out earlier, and the Court would have to be satisfied that the variation to clause 3 in question was both understood by the purchaser and the vendors, and that they all intended to be bound by it. What the Court would have to be so satisfied would depend on the surrounding circumstances.” [24] The law and the principle as set out in the authority above is clear. Parties to a contract may vary the terms of the contract they entered into. They may even agree to vary an agreed term earlier that requires written approvals to be done orally. But they must have come to a mutual agreement for that variation to the agreed terms to come into effect. There was no evidence furnished by the Respondent to show that both parties had agreed that any VO can be affected through an oral agreement. [25] I therefore rule that the learned Magistrate had erred when she considered the oral agreement by the Respondent, if any, to vary the quotation. I also found that the Magistrate had failed to consider ss. and 92 of the Evidence Act. S/N kE1FT3UlYkkc6wGIlfdw [26] The evidence showed that the Respondent had previously used the extrusion profile, a general method used by the Respondent to overcome and align height issues between wall and the cubicle. In this instance the Respondent did not use extrusion profile, but instead straight away did alterations on the height of the cubicles without any written VO. [27] I found that the Magistrate had erred when she wrongly inferred that the Appellant's rejection of the Respondent's works, including the VO, was an afterthought (see paragraph 38 of the Grounds of Judgment). On the contrary, the evidence showed that the Appellant had rejected the Respondent's works that was carried out without a proper VO on 7.1.2022, which was five (5) days before the Respondent's letter dated 12.1.2022. The Appellant’s rejection letter of the Respondent’s works was not on 14.1.2022 as alleged by the Respondent and wrongly accepted by the learned Magistrate. [28] Due to the wrong installation works carried out by the Respondent, the Appellant was charged late penalty charges by the project owner. S/N kE1FT3UlYkkc6wGIlfdw CONCLUSION [29] Based on all the above considerations, the Appellant appeal was allowed with costs. The Magistrate's decision was set aside. The matter was ordered to be remitted to the learned Magistrate for the assessment of damages. Dated : 20 February 2024 -signed- (MOHD RADZI BIN HARUN) Judge High Court of Malaya S/N kE1FT3UlYkkc6wGIlfdw PARTIES: Solicitor for the Appellant: Tang Keen Cheong Messrs. Tang, Khor & MP Leong Unit 3A-17, Block A, Kelana Square 17 Jalan SS7/26, Kelana Jaya 47301 Petaling Jaya, Selangor Darul Ehsan Ref. : KMPL/Lit/2208/TE/T Email : tkl.legalas@gmail.com Solicitor for the Respondent: Lim Jit Kiong dan Lin Chia Yi Messrs. JK LIM E-2-08 Neo Damansara, Jalan PJU 8/1 Damansara Perdana, 47820 Petaling Jaya Selangor Darul Ehsan Ref. : LJK/0222/8/ASB Email : jklim.law@gmail.com S/N kE1FT3UlYkkc6wGIlfdw