Malacha Sdn. Bhd. v Dmy and Family Sdn. Bhd. (MC-A73-2-02/2024)

This case involved a claim where the plaintiff alleged that the V-Power 97 petrol sold and supplied by the defendant at the Shell station was contaminated with water and as a result of filling the vehicle with the contaminated petrol, the plaintiff’s car sustained damage and losses due to the defendant’s negligence.

This case began with its background where the plaintiff’s counsel, through e-Review, informed the Court that the Affidavit of Service was filed on 28.03.2024 under Encl. 4, indicating that the Writ of Summons and Statement of Claim had been duly served on the defendant on 07.03.2024. No appearance was entered by the defendant. Accordingly, the plaintiff obtained a Judgment in Default of Appearance (“JID”) against the defendant on 28.03.2025. Subsequently, the plaintiff filed a Notice of Appointment for Assessment of Damages, seeking directions for the assessment of damages in relation to the plaintiff’s car, which was allegedly damaged as a result of being refuelled with contaminated petrol mixed with water from the defendant’s petrol station.

In the meantime, on 12.07.2024, the defendant applied to set aside the JID, to which the plaintiff raised no objection. As a result, the JID was set aside and therefore the Notice of Appointment for Assessment of Damages was also dismissed to allow both the Plaintiff and the Defendant to fully ventilate their respective cases in a full trial, which is now before this court.

Upon full trial, the plaintiff and defendant respectfully called the witnesses who testified for each case as follows Plaintiff’s case: i. Service centre supervisor at Sime Darby Auto Performance Sdn Bhd, En. Muhammad Fazree: PW1; ii. General manager of Motor Jasa Adjusters Sdn Bhd, En. Kumaran: PW2; iii. One of the directors of the plaintiff, En. Chew Kheng Hiang: PW3; and Defendant’s case: i. One of the directors of the defendant, Puan Khairunnisaa: DW1; and ii. One of the directors of the defendant, En. Mohamad Din: DW2.

The plaintiff is the owner of a Porsche motor vehicle, Model Cayenne bearing registration no. MG 82 (“the car”). On 30.09.2023 at approximately 2:14 p.m. or around that time, the car driven by the Director of the plaintiff (PW3), attended the Shell Petrol Station located at Lot 4439, Mukim Sungai Petai, Alor Gajah, 78000 Melaka, which is operated by the defendant, to refuel with V-Power 97 petrol.

After refuelling with the said V-Power 97 petrol, the car lost power and became damaged. The car was then towed to the Porsche Service Centre for inspection. An inspection carried out by the Porsche Service Centre and found that the V-Power 97 petrol filled into the plaintiff’s car was contaminated and mixed with water.

The car was subsequently repaired by the Porsche Service Centre. As such, the plaintiff filed this action to claim the cost of the repairs incurred and other damages from the defendant.

The defendant, incorporated since 18.11.2008, was granted an operating license by the Ministry of Domestic Trade, Cooperatives and Consumerism (KPDNKK) with franchise status by Shell Malaysia to operate a Shell petrol station at the said location, Alor Gajah.

On 03.10.2023 in the afternoon, the defendant received an email from Shell Malaysia informing and attaching a complaint made by the plaintiff to Shell Malaysia earlier on 03.10.2023 at 9:55am. After the defendant confirmed that the car had indeed refueled with V-Power 97 at the said Shell Station, the defendant contacted Syarikat Takaful Malaysia Am Berhad (“Takaful Malaysia”), the insurance provider for the Shell Station, to seek advice and opinion regarding the plaintiff's complaint against the defendant.

The defendant subsequently submitted a claim to Takaful Malaysia in relation to the plaintiff’s complaint. The defendant repeatedly informed the plaintiff that the complaint had been referred to Takaful Malaysia and that Takaful Malaysia would investigate the plaintiff’s complaint.

An inspection was carried out at the said Shell Station around mid-October 2023. The defendant was informed that Takaful Malaysia would notify the defendant of the investigation results, while Takaful Malaysia would deal directly with the plaintiff regarding the complaint. The defendant later received a rejection letter dated 12.06.2024 from Takaful Malaysia, informing that the insurance policy did not cover the plaintiff’s claim. One of the reasons for the rejection was that the plaintiff’s claim was excluded due to seepage and/or water leakage at the Shell Station, which caused the petrol contamination.

Throughout the material period, according to the defendant, the defendant’s business operated as usual and the defendant never received any other complaints from its customers or from any other parties regarding petrol contamination with water. Daily test inspections conducted by the defendant also did not show any water contamination in the petrol.

Hence, the defendant appointed a technician to inspect whether there was any seepage and/or water leakage at the Shell Station as stated in the rejection letter from Takaful Malaysia. Upon inspection, no seepage and/or water leakage was found at the Shell Station. The defendant also emphasized that it did not receive any customer complaints after the inspection, up until the present time.

Both parties have raised their respective issues in their submissions. Cross-referencing with the “Issues to be Tried” filed by the plaintiff’s counsel at Enclosure 27, the following issues are identified for this court’s determination: a) First Issue: Whether the plaintiff’s car sustained damage after refuelling at the defendant’s Shell station and whether the alleged contamination in the petrol caused such damage; b) Second Issue: Whether the defendant was negligent in selling and/or supplying contaminated petrol to the plaintiff and whether the petrol sold and supplied was of unsatisfactory merchantable quality or otherwise contaminated; c) Third Issue: Whether the plaintiff suffered losses as a result of the defendant’s negligence, and if so, what is the appropriate quantum of damages to be awarded, considering any potential loss in the residual value of the plaintiff’s car; and d) Fourth Issue: Whether the plaintiff is entitled to recover legal expenses incurred and paid to the plaintiff’s solicitors?

The plaintiff's case was essentially that the defendant had supplied and sold contaminated petrol to the plaintiff. The contaminated petrol was not of merchantable quality and as a result of filling the plaintiff’s car with the said petrol, the car sustained damage. The plaintiff therefore claimed to have suffered loss and damage due to the defendant’s negligence.

Simultaneously, the defendant argued that the plaintiff had failed to prove the nature, extent and cause of the damage to the car. In addition, the plaintiff also failed to establish that the petrol in the plaintiff’s car was contaminated with water or that such contamination was the cause of the damage. Furthermore, the remaining petrol which was more than half a tank, was of unknown origin and its source was not disclosed, leaving the quality of that petrol unverified.

(I) LIABILITY

(A) First Issue: Whether the plaintiff’s car sustained damage after refuelling at the defendant’s Shell station and whether the alleged contamination in the petrol caused such damage?

Towing

The first part concerns the towing of the plaintiff’s car in this case. PW3 confirmed during cross-examination by the defendant’s counsel that he did not accompany the tow truck that transported the car to the Porsche Service Centre in Johor Bahru and had no personal knowledge of the time the tow truck arrived at the service centre. However, DW2, the defendant’s director, admitted that the fact that the plaintiff’s car was towed to the Porsche Service Centre.

The defendant’s counsel subsequently argued that the distance between Melaka and Johor Bahru is only about 200 km, which would typically take approximately 3 hours to travel. On that basis, the defendant’s counsel questioned the time taken for the car to be towed, speculating whether the tow truck driver departed immediately after picking up the car or made stops at R&R areas along the highway.

In contrast, this court noted that the plaintiff successfully produced documentation (page 2, Bundle D) through PW1, showing that the Porsche Roadside Assistance (RSA) was contacted by the plaintiff’s representative shortly after the car broke down. The case details were recorded for the event date and time on 30.9.2023 at 2.31 pm under Case ID: 1146952. This was specified in an email dated 30.09.2023 at approximately 2:53pm sent by Porsche RSA to various recipients, including Alan (vadivelan.mohan@porsche.com.my), Nazrin Nazly (nazrin.nazly@porsche.com.my), Syed Mohd Faisal Syed Bakar (syed.mohd.faisal@porsche.com.my) and the Porsche Centre Johor Bahru (pcjb-service@porsche.com.my).

En. Chew Kheng Hiang, the plaintiff’s director and the driver of the car (PW3), gave sworn testimony that the car lost power and broke down after refuelling with V-Power 97 petrol at the defendant’s petrol station. He further testified that the vehicle had no prior problem before refuelling and that no other petrol or liquid was added after the incident at the Shell station. As for the towing matter, the defendant’s counsel argued that the plaintiff relied only on photographs (pages 57–59, Bundle C) showing the car being towed, without any timestamp. Indeed, none of the Plaintiff’s witnesses (refer to pages 8 (PW1), 30 (PW2), and 46 (PW3) of the Notes of Proceeding) could confirm the date and time of the towing based on the photographs. Moreover, no towing report was produced, and the tow truck driver, who could have testified about the details of the towing process, was not called as a witness.

There was a significant discrepancy in the testimony of PW1 and PW2 regarding the time the car arrived at the Porsche Service Centre in Johor Bahru. According to PW2 (the adjuster appointed by the plaintiff), based on information from the tow truck driver, Encik Faiz (who was not called as a witness), the car was towed on 30.09.2023 after 6.00pm and arrived at the Porsche Centre late at night on 01.10.2023 indicating that the towing process took more than a day. Meanwhile, PW1 (the service supervisor at the Porsche Centre) testified under cross-examination that the car was towed from Melaka at about 2 pm on 30.09.2023 and arrived at the Porsche Centre after midnight, which means the journey took over 10 hours.

Nevertheless, this court found that the RSA system log, which recorded the complaint and towing request, followed by the actual inspection of the plaintiff’s car at the Porsche service centre, sufficiently supports the fact that the towing indeed took place. The existence of a caller ID and immediate response from RSA lends credence to the plaintiff’s version. As such, the defendant’s argument questioning the photographs and absence of a tow truck witness lacks of merit.

In the view of this court, towing in the current case was merely a means of transporting the car to the inspection location, and the documentation and system log were sufficient to support that the towing request was genuine and executed. This court found no basis for questioning the towing process, particularly since this was not a case of a typical “towing scam” where unscrupulous operators tow vehicles to questionable locations for inflated prices. Instead, the plaintiff claimed only the cost of repairs, as shown in the invoice issued by the Porsche Service Centre (pages 30–31, Bundle C), which did not include towing charges.

In essence, the issue raised by the defendant regarding the towing is without merit. It is sufficiently established that the car was towed, as acknowledged by DW2, and that it arrived at the Porsche Centre for inspection.

(ii) Inspection taken by the Porsche Service Centre

The Porsche Service Centre conducted a detailed inspection following the customer’s complaint that the car could not start and displayed multiple warning messages after refuelling. Using the Piwis Tester, error codes were detected, indicating high resistance in both the left and right fuel level sensors, as well as an issue with the brake assist vacuum. Attempts to start the car were unsuccessful. Initial checks revealed that the fuel tank was full, and several spark plugs including cylinder 1 showed signs of moisture on the centre electrode. All remaining spark plugs across the cylinders were found to be wet, indicating water exposure. The technicians proceeded to drain the fuel tank and discovered a mixture of fuel and water, confirming external contamination. Even after replacing the spark plugs and refilling the tank with new petrol, the engine started but ran abnormally before eventually stalling. Due to the ongoing performance issues, the service team decided to inspect the entire fuel system. As a result, they identified multiple components affected by water exposure that required replacement. The steps taken and its finding was documented on page 11-12, Bundle D.

PW1, who testified before this court, further clarified that the root cause of the car’s malfunction, as identified by the Porsche Service Centre, was significant water contamination in the fuel system. This exposure caused extensive damage to various fuel system components, resulting in engine failure, abnormal performance and cylinder misfires. The entire fuel system had to be drained, and most components that had come into contact with water needed replacement, as there are no service or maintenance procedures available for the affected parts.

In this context, PW1 is the supervisor at the Sime Darby Auto Performance Sdn Bhd service centre, to whom Mr. Vadivelan (also known as Alan) reported. This court agreed that PW1 is in the best position to give evidence regarding the car inspection process, as he led and issued instructions within the organization, making final decisions independently without relying on instructions from others, a point that the defendant’s counsel may test through cross-examination. (Mohamad Shaiful Alif Mohd Sharif & Anor v Amuthanraja Appoo [2024] PILRU 26).

Furthermore, this court found the defendant counsel's claim regarding Mr. Alan’s role in the technical findings on page 11, Bundle D, to be inaccurate. The technician’s name is En Khairul Naaim, not En Alan. As shown in the document at page 9, Bundle D, Mr. Alan is clearly listed as a service advisor, the point of contact for customers regarding car servicing, tasked with managing appointments and advising on necessary repairs. PW1, as his supervisor, undoubtedly has the authority to testify and respond to any questions raised by the defendant’s counsel in this matter.

Additionally, regarding the issue of photographic evidence of water found in the car’s fuel system, the corresponding video was not submitted or displayed in court, despite claimed that it served as critical proof, for the video referenced at pages 51 and 63 of Bundle D. The defendant’s counsel argued that the photographs submitted were unverified and therefore unproven; meanwhile, no video or photograph was shown to depict the draining of the fuel tank, nor was there visual confirmation of water contamination.

The actual situation was that the plaintiff's counsel believed the video could be shown through the WhatsApp communication on page 63 of Bundle D, which included an attached MP4 video between PW3 and the petrol station owner. However, the defendant’s counsel correctly objected, stating that the video recording should have been filed in court in the form of a CD. Since neither the counsel nor the defendant themselves had the opportunity to view the video recording beforehand, its contents could not be fairly evaluated.

When plaintiff’s counsel stated, “If you want me to file, I can file” (page 12, Notes of Proceeding), the defendant’s counsel objected that it was too late to do so. This court accepted the root cause of damage recorded at page 12, Bundle D, issued by the service centre, which clearly stated: “Due to exposure of fuel system to big amount of external influence – WATER.” PW1 also confirmed the photographs showing the extracted water in jars, found on pages 60–62 of Bundle D. Each image included the date and the car registration number in the bottom right corner. PW1 verified in court that these images were taken from the area beneath the engine.

This Court is concerned by the plaintiff’s handling of the video recording evidence. The plaintiff’s counsels must be aware that a CD containing the video recording must be submitted if intending to rely on it as evidence. The issue of admissibility under section 90 of the Evidence Act 1950 becomes particularly relevant in the modern era, where digital files may be susceptible to modification. Without the proper filing of a CD, the video cannot be evaluated, let alone relied upon as evidence. It is not acceptable to expect the court to consider a video simply attached to a WhatsApp conversation or email, especially when it cannot be opened or displayed, which would be unfair to the defendant and contrary to the very purpose of Pre-Trial Case Management (Order 34 rule 2, ROC 2012). This court is mindful that the purpose of case management would be completely undermined if counsels were permitted to disregard these rules and treat it as a mere formality. Meaning to say, during the case management stage, the plaintiff’s counsel was expected to hand over the video recording CD to the defendant and this court but the plaintiff has failed to do so in the current case. (Great World-Wide Distributors (M) Sdn Bhd v Giacomo Corporation (M) Sdn Bhd and Third Party [1996] MLJU

Next, the defendant argued in its written submission that if water-contaminated fuel had indeed been pumped into the car and the car would not have been able to start within the petrol station premises, rather than after being driven 2 KM. Plaintiff’s counsel contended that this was not a defence pleaded by the defendant, as there was no such pleading that the car should not have started at all. In the considered view of this court, this is not a pleading issue but rather a submission based on the evidence presented during the trial. It was not alleged that the car was completely immobile, but rather that it lost power, a distinction the defendant attempted to emphasize in their argument.

However, what is crucial here is that the defendant should have called a technical expert witness to support the claim that a car with water-contaminated fuel would not be able to start at all. Instead, they relied solely on DW2, who is not a trained technician but a layman. According to DW2, he gave testimony based on his own experience involving a similar incident with his BMW X6. After having the plastic (polyethylene) fuel tank cleaned and refilled, his car operated smoothly within 2–4 hours without the need to replace any parts. Based on that, he claimed that it was unreasonable to replace the entire fuel tank and other components in the plaintiff’s case, unless the tank had been damaged in an accident. Additionally, the defendant claimed that the plaintiff failed to provide essential documentation such as purchase orders or delivery orders for the new fuel tank and other replacement parts. Also, no evidence from the plaintiff was submitted to prove the dismantling process or the existence of the old parts that were supposedly replaced.

On 17.01.2025, the matter proceeded for continued trial wherein the Plaintiff had already closed its case on the previous hearing date. That said, learned counsel for the plaintiff objected to the filing of the new witness statement by the defendant, referring specifically to Encl. 42: - a) The objection was raised on the following grounds, firstly, the plaintiff had already closed its case; and secondly, the pre-trial case management (PTCM) directions had been issued as early as September of the previous year. In the presence of unless order issued under Order 34 of the Rules of Court 2012, the defendant’s counsel ought not to be allowed to file further documents or witness statements; thirdly, the proposed witness was not listed in the defendant’s original witness list filed in compliance with the PTCM directions; b) Accordingly, the Plaintiff objected to the filing and calling of this new witness. In response, counsel for the defendant submitted that the witness in question was not entirely new, as the court had previously been informed of the defendant’s intention to call the mechanic as a witness. The witness in question, Urazydy Bin Zakaria (as named in Encl. 42), was said to be the intended witness, but due to a clerical error, the name “Khairul Azli bin Bastani” had been mistakenly inserted into the list of witnesses filed earlier (pages 69 to 72 of the Notes of Proceedings); c) Upon perusal of the defendant’s List of Witnesses, this court found that the name Urazydy Bin Zakaria was never listed. Consequently, this court allowed the plaintiff counsel’s objection by not calling of Urazydy as a defendant witness; d) It is important to note that, this court had earlier issued the pre-trial case management directions which required, among others, that all parties must file and serve the list of witnesses and all witness statements prior to the commencement of trial; and e) Thus, this court found that the defendant’s conduct to call the new witness at this late stage would amount to a trial by ambush, especially considering that the plaintiff had already closed its case. The defendant’s attempt to rectify the name of the witness only on the day of opening its case appeared to be a strategic reconsideration rather than a bona fide error. Such conduct was not condoned by this court, as it contravened the PTCM directions and had caused prejudice and surprise to the plaintiff.

Based on PW1’s testimony, this court found that the plaintiff successfully proved the car was damaged and repaired in accordance with the technical evaluation and root cause analysis from the Porsche Service Centre, as stated on pages 9–12 of Bundle D. Therefore, it was the defendant’s responsibility to call a rebuttal witness specifically a qualified technician familiar with workshop techniques to support DW2’s version that the car should not have been able to move even a short distance if the fuel was contaminated with water. The only effective way to challenge the plaintiff’s expert witness is by presenting rebuttal evidence from another expert who could demonstrate flaws in the analysis or methodology, or that the conclusion reached was inaccurate (see Dato’ Seri Anwar bin Ibrahim v PP [2010] 1 MLJ 579, HC, per YA Tan Sri Dato’ Mohamad Zabidin bin Mohd Diah, as he then was).

Put simply, the concept is similar to whether a heart patient who regularly takes heart medication can determine what prescription to take without consulting a specialist doctor. It is unreasonable for the defendant to argue that DW2, despite driving luxury car, has the knowledge to determine precisely which vehicle components are faulty or require replacement especially without the technical skills possessed by certified service centre technicians such as those at the Porsche Service Centre.

Second Issue: Whether the defendant was negligent in selling and/or supplying contaminated petrol to the plaintiff and whether the petrol sold and supplied was of unsatisfactory merchantable quality or otherwise contaminated?

Email regarding the Plaintiff’s Complaint 38. This issue arose when the defendant’s counsel argued that PW3 admitted the findings of the inspection which allegedly revealed that the petrol was mixed with water, were only known to him after he received the photographs. However, PW3 had earlier given conflicting testimony stating that he received the photographs on 02.10.2023 (refer to pages 47 of the Notes of Proceedings). After receiving and identifying the inspection findings from the photographs, PW3 then lodged a complaint with Shell Malaysia via email on 03.10.2023 at 9.55am (refer to page 4 of Bundle C). The email stated that after checking and verifying by Porsche Johor Bahru Centre, it was found that the Petrol 97 contained high water content causing the car to break down.

The defendant argued that upon closer inspection of the photographs, the date and time of the photos capture were on 03.10.2023 at 3.45pm. Therefore, it would have been impossible for PW3 to have received the photos from Mr. Vadivelan Mohan (“Mr Alan”) on 02.10.2023 or even in the morning of 03.10.2023. Likewise, it would be illogical and impossible for the plaintiff to have identified the inspection findings of the vehicle when submitting the complaint to Shell Malaysia at 9.55am on 03.10.2023 since the photos had not yet been taken at that time. Hence, the defendant emphasized that the testimony of PW3 was self-contradictory when compared with the documents submitted by the plaintiff.

In summary, the defendant in their written submission claimed that the plaintiff could not have sent the complaint to Shell on 03.10.2023 since the photographs were allegedly only taken later that same day. This court found that the defendant’s counsel was confused by the evidence and agreed with the plaintiff’s counsel that the issue raised by the defendant is without merit. The facts that persuaded this court there were no chronological inconsistencies were as follows where the car was towed to the Porsche Service Centre following the incident on 30.09.2023. The Repair Order for the vehicle was issued by the Porsche Service Centre on 02.10.2023. The defendant focused on the fact that several photographs were taken on 03.10.2023 to support his argument but deliberately ignored the fact that the Repair Order had already been issued on 02.10.2023. PW3 gave evidence that he was informed of the cause of the car’s malfunction on 02.10.2023 by the representative from the Porsche Service Centre.

The Plaintiff subsequently sent the complaint email to Shell, and Shell had also forwarded it to the defendant, as admitted by DW1 in her testimony before this court (page 80, Notes of Proceedings). DW1 stated that she had knowledge of the email (refer to pages 87–88, Bundle C), which was an email from Hazmi Hussin (Shell Malaysia) in reply to PW3. In the email, Shell acknowledged that the complaint had been recorded under the number 5770659, had been forwarded to the relevant team for further action, and requested that PW3 provide a full technical report and a repair cost quotation. The complaint email from the plaintiff stated that his car broke down at the roadside after refuelling with V-Power 97 Petrol at the defendant’s Shell station, located approximately 2 KM from where the incident occurred, and after verification by the Porsche Johor Bahru Service Centre, it was found that the V-Power 97 Petrol contained water content which caused the car breakdown.

Furthermore, in her testimony, DW1 stated that although it was the staff who handled the receipt of the email, but she was the one who forwarded it to the insurance company on 23.04.2024 (refer to page 45, Bundle C) for immediate action to be taken. The insurance company bearing the risk for the defendant’s petrol station in this case is Syarikat Takaful Malaysia Berhad. A proper understanding of the material facts is essential for the orderly conduct and sound determination of the case. Establishing every fact in a trial is crucial to the success of the claim. However, where a fact cannot be conclusively established due to the state of the evidence, this does not require the application of any legal principle but a close and detailed analysis of the facts. I have carefully considered the arguments raised by both counsels and found myself aligned with the plaintiff’s counseln where there is nothing illogical or implausible about the plaintiff’s representative sending the complaint to Shell on 03.10.2023.

(ii) Google Review 43. The defendant argued that apart from the complaint and claim made by the plaintiff against the defendant, the defendant had never received any other complaints or claims from its other customers at all material times (page 75, Notes of Proceeding). In addition, the plaintiff had referred to a Google review regarding the defendant’s Shell Station, which was written by an individual named “Zulhilmi Ghani” who claimed to be a customer of the defendant and recounted his experience refuelling at the said Shell Station on 31.03.2024, which was approximately half a year after the plaintiff’s incident on 30.09.2023 (refer to the screenshot at page 30 of Bundle D). In the said Google review, it was alleged that: “Terisi minyak petrol yang bercampur air.. kalau owner baca, tolong check minyak petrol viva..isi minyak pukul 11pg, 31/3/24, semalam, terus kereta semput.. ingatkan rosak gearbox ke apa... Tanya pomen, mungkin sebab petrol bercampur air..”

The defendant’s counsel argued that the literal interpretation of the word “semput” was meant as “shortness of breath”” used for a person, and the actual condition being referred to when it is said that a vehicle was “short of breath” remained an unanswered and unproven question. Furthermore, the individual who left the Google review only made an inquiry to the foreman without conducting any proper inspection of the vehicle and the cause of the vehicle’s malfunction was also not determined, as agreed by PW3 himself (page 61, Notes of Proceeding). The defendant’s counsel further argued that the said individual who wrote the review was not called as a witness in court. Upon examining the Google reviews, there were 168 reviews from various individuals. However, only one of those reviews by the individual named Zulhilmi Ghani had alleged that the petrol filled at the Shell Station might have been contaminated with water. Meanwhile, DW1 also testified that the defendant had never received any personal complaint from the said Zulhilmi Ghani or from any other party on his behalf (pages 74 and 75, Notes of Proceeding).

Based on the above, the defendant’s counsel argued that in any event, the screenshot of the Google review was irrelevant, as emphasizing in the earlier that the alleged incident on 31.03.2024 occurred six months after the plaintiff’s incident on 30.09.2023. The identity of Zulhilmi Ghani as a customer of the defendant, as well as the condition and cause of the alleged vehicle damage, was also unproven. Also, there were no complaints from any other party or customer of the defendant at all material times. That said, the defendant’s counsel strongly argued that the petrol supplied by the defendant to its customers, including the plaintiff, was of good quality.

In the considered view of this court, while a lack of complaints may suggest a positive customer experience, however it does not guarantee that there are no underlying issues. It is possible that some individuals have not voiced their concerns, or that others may not have noticed or reported potential problems. These possibilities make such an argument insufficient to serve as a concrete foundation for the defendant’s case.

It is worth noting that, in my mind, even if it is shown that someone posted a review and what was written in that review, it does not constitute proof that the facts claimed in the review are true. As someone with a legal background should be aware, the integrity of the rules of evidence in court must be upheld. For instance, the plaintiff could have contacted the person who wrote the review and that person might have been willing to appear in court as a witness. That would have made the statement one made under oath, and thus be taken seriously as evidence rather than merely hearsay. However, that is not the case here, as Zulhilmi Ghani was not called as a witness to substantiate the claims made in the review. This is a substantive argument raised by the defendant’s counsel, and this court accepts this point, that the said review shall not be taken into consideration in this context.

(iii) Dipping Test 48. This court begins by looking at the investigation conducted by Takaful Malaysia in mid-October 2023. Syarikat Takaful Malaysia Berhad, the insurer covering the defendant’s petrol station, found the following, that as a petrol station operator, the defendant has a duty to monitor the water level to ensure that there is no seepage or leakage that could result in fuel contamination. Based on the facts presented, the defendant failed to monitor the underground storage tank, which consequently led to the contamination of the fuel. Since the damage to third-party vehicles arose from seepage or pollutants, the exclusion clause applies to the loss (refer to page 81, Bundle C). The plaintiff relied on the said letter of rejection issued by Takaful Malaysia dated 12.06.2024, which denied the defendant’s insurance claim in relation to the plaintiff’s demand (refer to pages 81 and 82, Bundle C).

The defendant’s counsel argued that attention should be drawn to the fact that the letter of rejection was issued following an inspection conducted at the defendant’s Shell Station in mid-October 2023, more than two weeks after the incident on 30.09.2023. According to the testimony of DW1, upon receiving the rejection letter, and despite there being no further complaints of water leakage in the fuel tank from customers, the defendant nevertheless engaged a technician to conduct a reinspection of the fuel tank. No leakage was found during this reinspection (refer to pages 91 and 92, Notes of Proceedings).

The defendant further contended that the plaintiff had failed to call any witness from Takaful Malaysia to verify the content and validity of the rejection letter. In the circumstances, the plaintiff has not discharged the burden of proof to establish that there was seepage or leakage in the defendant’s Shell Station fuel tank on 30.09.2023. The defendant strongly asserted that the finding as stipulated in the rejection letter was doubtful and illogical, as every “dipping test” conducted by the defendant showed no presence of water in the fuel tank. Furthermore, there were no complaints received from customers, since the defendant’s business operations continued as usual both before and after the incident, as well as after receiving the rejection letter.

In a civil case, one party’s contrasting evidence is also evidence for the other party. Thus, the plaintiff may rely on the defendant’s evidence to support his or her case, and vice versa (Tan Kah Khiam v Liew Chin Chuan & Anor [2007] 2 MLJ 445, Court of Appeal). In the considered view of this court, the plaintiff has proven its case by tendering the investigation report by Takaful Malaysia. Moreover, Takaful Malaysia is the defendant’s own insurer, covering the risks associated with the defendant’s petrol station. This court found that the investigation finding was sufficiently credible, especially given that they come from the defendant’s own insurer.

It is noteworthy that DW2 admitted during cross-examination that the RON 97 fuel pump at the petrol station would be disabled when water vaporization occurs (page 139, Notes of Proceedings). In connection with this, Mr. Kumaran viz the General Manager of Motor Jasa Adjusters Sdn Bhd (PW2) was called by the plaintiff to give evidence. PW2 has 25 years of experience in the field of loss adjusting. However, the defendant’s counsel argued that PW2 was only appointed in September 2024 (refer to pages 27 and 28, Notes of Proceedings) and the investigation was conducted on 22.10.2024, more than one year after the incident on 30.09.2023. The facts stated in PW2’s report (page 53, Bundle D) were solely based on the version provided by PW3. Furthermore, the defendant’s counsel contended that the plaintiff’s action clearly showed an intention to obtain an investigation result favourable to the plaintiff, merely to counter the issues raised by the defendant.

In this case, PW2 indeed prepared a Loss Adjuster’s Report as seen on pages 33–77, Bundle D. During PW2’s site visit to the defendant’s petrol station, it was observed that all RON 97 fuel pumps bore notices stating “Harap Maaf RON 97 kami rosak” (refer to page 69, Bundle D). Plaintiff’s counsel argued that the defendant had not allowed the use of the RON 97 fuel pumps by customers.

On the other hand, the defendant’s counsel argued that it was their standard practice to conduct dipping tests three times daily to ensure the petrol in the station’s tank was not contaminated with water, as stated in paragraph 7(e) of DW2’s witness statement [WS(SD2)]. These dipping tests were mandatory under the instructions of Shell Malaysia (refer to pages 135–136, Notes of Proceedings). The tests were conducted in the morning (8:00 a.m.), afternoon (3:00 p.m.) and at midnight (12:00 a.m.), see dipping reports on pages 6–23, Bundle E). A dipping test was also observed on page 71, Bundle D, during PW2’s visit to the defendant’s petrol station on 22.10.2024, with the afternoon session recorded at 3:26 p.m.

DW2 testified that each dipping session was performed by the staff of the previous shift before handing over to the next shift (pages 148–149, Notes of Proceedings). Another sub-point raised by plaintiff’s counsel was that Mr. Muiz, the defendant’s Station Manager, should have been a key witness as he had personal knowledge of the incident. Despite Mr. Muiz’s name being frequently mentioned during the trial, he was not called to testify by the defendant. The plaintiff thus argued that the failure to call Mr. Muiz drawn an adverse inference against the defendant under section 114(g) of the Evidence Act 1950, as if Mr. Muiz had been called to testify and his evidence would have been unfavourable to the defendant.

However, the defendant’s counsel responded that since it was an agreed fact that the plaintiff’s car in question refuelled at the Shell station on 30.09.2023 around 2:14 p.m., there was no obligation for the defendant to call Mr. Muiz. This position was further supported by PW2’s report, which the plaintiff tendered as documentary evidence in the trial. During PW2’s visit to the Shell station on 22.10.2024, PW2’s team had interviewed Mr. Muiz, as recorded on page 68, Bundle D. Mr. Muiz acknowledged his awareness of the incident but stated he was unsure of the outcome. According to him, this was the first such incident. When the adjuster team asked further questions, he advised them to check with the management.

As Mr. Muiz had knowledge only of the agreed facts and lacked knowledge regarding the outcome of the incident with requiring referral to the management, it can be said that the appropriate witnesses were DW1 and DW2, who were representatives of the defendant’s management and possessed the requisite knowledge of the incident. The testimonies of DW1 and DW2 should be able to carry high evidential value, rather than Mr. Muiz.

As argued, the facts “at the material time” at the Shell station were agreed facts, therefore, the evidence of DW1 and DW2 should not be discredited merely because they were not present at the petrol station during the incident. On this aspect, this court agreed with the defendant counsel’s submission. This court found that, since DW2 testified that each dipping session was conducted by the outgoing staff before the shift change, it showed that Mr. Muiz was not the sole person responsible for all dipping operations. Thus, he is not a material witness. Accordingly, there is no element of deliberate withholding of a witness by the defendant, especially since Mr. Muiz’s account was already recorded in the plaintiff’s own adjuster report (PW2’s report), which caused no prejudice at all to the plaintiff. This Court found that, based on this, an adverse inference under section 114(g) of the Evidence Act 1950 was not to be drawn against the defendant.

Furthermore, this court observed that the adjuster’s report not only presented the plaintiff’s version (PW3) as argued by the defendant, but also included the defendant’s manager viz Mr. Muiz’s statements and the practice of dipping carried out by the defendant’s station. In the considered view of this court, the adjuster report appeared balanced and not biased solely in favour of the plaintiff’s case, as alleged by the defendant’s counsel.

DW2 also testified that the defendant would not sell petrol if it was found to be contaminated, as doing so would not only jeopardize the reputation of the defendant and Shell Malaysia, but could also result in unwanted claims or legal action. Accordingly, only after conducting the petrol dipping test and confirming that the fuel was uncontaminated, would the defendant proceed to supply quality petrol to its customers (pages 135–136, Notes of Proceedings). The defendant’s counsel further argued that the weather on

30.09.2023 was good and there was no rain. This was corroborated by PW2 (pages 29 and 35, Notes of Proceedings) and PW3 (pages 63 and 64, Notes of Proceedings) respectively during their testimonies before this court.

The plaintiff's car was refuelled at the defendant’s Shell station on 30.09.2023 at approximately 2.14 p.m. According to the practice as stated earlier, the last petrol dipping test prior to that was conducted in the morning of 30.09.2023 at 8 a.m. After the refuelling, another dipping test was conducted at 3 p.m., and again no issues were reported. Given the good weather on that material day, as submitted earlier, there was no possibility of water entering the fuel tank between the 8 a.m. dipping and the plaintiff’s refuelling at 2.14 p.m. Therefore, the defendant’s counsel disputed the plaintiff’s allegation that the petrol was contaminated with water at that material time.

In essence, through DW2’s testimony, the defendant’s counsel sought to rely on the steps taken that dipping tests are routinely carried out, and thus, the defendant’s petrol should not have been contaminated. However, the plaintiff must emphasize that while the defendant’s claim to have conducted dipping tests regularly, such a fact was never pleaded in the defence. DW2 confirmed during cross-examination that the defendant had only one dipping report. However, only a photograph of the dipping was produced in the said dipping report.

A full dipping report which would presumably contain more detailed information (if it exists), was either withheld or not produced. When further questioned on this issue, this court agreed with the plaintiff’s counsel that DW2 clearly refused to give any further confirmation. This can be seen in the cross-examination of DW2 (page 134, Notes of Proceedings), where he was uncertain about the photograph of the dipping test shown. Simply put, this court found that none of the defendant’s witnesses could provide clear and credible testimony regarding proof that a proper dipping test was conducted on the material time such as evidence of petrol fraction, standard specifications and records per pump, at every scheduled time, and by each staff member from day to day, and especially for the material date. All such results should have been properly documented, but not just photographed to show that a dipping occurred.

Plaintiff’s counsel submitted that the photographs were likely taken after the incident solely for the purpose of the trial and any actual dipping report (if it existed) was suppressed and deliberately withheld. The responses given by DW2 during cross-examination further undermined his credibility as the defendant’s main witness. His answers included multiple admissions of his unsure, despite having explained in his witness statement the dipping process, yet he was unable to provide relevant details when questioned. This court therefore agreed with the plaintiff’s counsel that such uncertainty severely damages DW2’s credibility, as he could not provide any meaningful or useful information in support of his own case (Hanson Building Materials Malaysia Sdn Bhd v Chong Boon Heng & Anor [2024] MLRSU 430, Sessions Court).

It follows that, prima facie, to establish negligence, the evidence presented by the plaintiff at trial must satisfy the three essential elements of negligence: i. the existence of a duty of care owed by the defendant to the plaintiff; ii. a breach of that duty; and iii. loss or damage suffered as a result of that breach. Such negligence is established by the following facts and evidence (Sabah Shell Petroleum Co Ltd & Anor v The Owners of and/or Any Other Persons Interested in the Ship or Vessel the ‘Borcos Takdir’ [2012] 5 MLJ 515, HC). Even in the absence of a formal contractual relationship between the plaintiff and the defendant, this court found that the defendant owed a duty of care to the plaintiff under the principle established in Donoghue v Stevenson [1932] AC 562. This duty required the defendant to ensure that fuel was safely and properly dispensed to customers without causing damage to their vehicles.

On 30.09.2023, the plaintiff’s car lost power approximately at 2 km from the defendant’s petrol station after refuelling and became immobile, eventually needing to be transported to a Porsche Service Centre for repairs. It is undisputed between the parties that the plaintiff refuelled at the defendant’s Shell station at around 2.14 p.m. As the fuel was fully under the defendant’s control, and no specific dipping schedule outcome was proven for the material time prior to the incident, which should not merely based on the photographs but should be a quantifiable table to record each and every daily outcome, this constituted a breach of the duty of care.

As a direct consequence of refuelling with contaminated petrol, the plaintiff’s car engine suffered significant damage, as verified by the Porsche technician in the part of technical evaluation and root cause at pages 11– 12, Bundle D. This satisfied the third element of negligence namely damage caused by the breach. The damage resulting from water-contaminated petrol was foreseeable and not too remote (Badan Pengurusan Bersama Tropicana Bay Residence @ Penang World City v Mutiara Metropolis Sdn Bhd (formerly known as Tropicana Ivory Sdn Bhd) & Anor [2023] MLJU 3315, HC). Hence, a prima facie case of negligence has been established. The burden then shifts to the defendant, as the petrol station owner, to rebut the charge of negligence and breach of duty by showing that the cause of the damage was not due to petrol contamination from their premise. This court found that, the defendant, however, failed to provide any credible explanation or reasonable steps taken such as a complete dipping report from 30.09.2023. Instead, they relied solely on general assertions and photographs, with no proper quantifiable dipping records produced.

It is crucial to note that the defendant did not plead the dipping test in their defence. As the plaintiff rightly argued, such a defence should have been pleaded. This court cannot build a case for a party based on matters not pleaded. As held in the case of Heritage Grand Vacation Club Bhd v Pacific Fantasy Vacation Sdn Bhd [2016] 4 MLJ 389, Court of Appeal, the trial must be confined to the issues pleaded by the parties. By introducing the dipping test as reasonable steps taken by the defendant only during written submissions, the defendant had breached the rules of pleadings which exist to ensure fairness.

Based on the above reasons, this court found that the defendant failed to prove that they had taken reasonable precautions, such as providing a proper quantifiable dipping report specifically dated 30.09.2023. The plaintiff has, on a balance of probabilities, established the defendant’s liability as the petrol station that supplied petrol contaminated with water, which had damaged the plaintiff’s car engine.

DAMAGES

(C) Third Issue: Whether the plaintiff suffered losses as a result of the defendant’s negligence, and if so, what is the appropriate quantum of damages to be awarded, considering any potential loss in the residual value of the plaintiff’s car?

This is a direct case where the plaintiff claimed for the repair costs of his car, a Porsche Cayenne SUV, which was refuelled with petrol allegedly contaminated with water from the defendant’s petrol station. Due to the negligence and breach of duty by the defendant as found by the court in the above, the plaintiff incurred a total of RM 48,568.05 in the repair costs. This expense was supported by an invoice from Sime Darby Auto Performance Sdn Bhd and the CIMB BizChannel fund transfer slip (pages 30–32, Bundle C).

Furthermore, as a result of the defendant’s negligence, the plaintiff suffered a loss of use of the said car. Mr. Muhammad Fazree, the representative from Sime Darby Auto Performance Sdn Bhd (PW1), gave sworn testimony that the plaintiff's car remained at the Porsche Service Centre for 83 days for repair works. After accounting for the waiting period for spare parts ordered from Germany, the plaintiff experienced 39 days of actual loss of use. The plaintiff adduced evidence showing that the daily rental rate for a vehicle of comparable class was at approximately RM2,100.00 (pages 75, Bundle D). However, the plaintiff only claimed RM200.00 per day, amounting to a total loss of use claim of RM7,800.00 (RM 200.00 x 39 days).

The defendant argued that according to CART and PIAM guidelines, loss of use should be capped at RM 50.00 per day. Plaintiff’s counsel submitted that this argument lacked of merit as the Takaful Insurance provider denied coverage for the claim based on reasons detailed in their letter dated 12.06.2024. Thus, the CART and PIAM guidelines was deemed inapplicable in this context.

In rebuttal, the defendant submitted that the plaintiff failed to produce any actual evidence of hiring a replacement vehicle for the 39-day period. PW3 confirmed that no replacement vehicle was hired (page 60, Notes of Proceedings). Although PW1 testified that the 39-day period was for actual loss of use after the period required for the delivery of parts from Germany, there was no documentary proof of such orders (page 18, Notes of Proceedings). Subsequently, plaintiff’s counsel clarified that the plaintiff did not claim loss for the entire 83-day period, only for the 39 days not covered by service delays and at a rate significantly below market rate. Moreover, delays were due to the insurer-appointed adjuster taking time to complete assessment before allowing repairs, as evidenced by correspondence from the service centre’s representative, Mr. Vadivelan (Alan).

The defendant further contested the basis for the 39-day calculation, pointing to the “Date/Time Promised” in the repair order (page 5, Bundle D), which indicated the expected completion date was 28.10.2023, suggesting a 26-day repair period starting 02.10.2023. In the considered view of this court, with respect, loss of use of a car refers to the period during which if the plaintiff hires a replacement car. However, PW3 in the current case had earlier testified that the plaintiff did not hire any replacement car during the relevant period. Therefore, this claim should be a non-starter (Euro Chauffeur (M) Sdn Bhd v Mohamed Yusoff bin Yahakub [2019] 12 MLJ 628, HC). Where there is no hiring of a replacement car for living or working purposes, it cannot be said that there was a loss of use during that period, and thus the plaintiff here was not entitled to claim for such loss.

Additionally, the plaintiff incurred RM 6,000.00 in appointing Motor Jasa Adjusters Sdn Bhd, substantiated with an invoice and Public Bank fund transfer slip (pages 78–82, Bundle D). The plaintiff’s allegation of delay in the defendant's insurer appointing an adjuster is unsupported, relying only on an email from Mr. Vadivelan (Alan) dated 30.10.2023. Defendant’s counsel emphasized there was no corroborative evidence showing the actual date of adjustment or any undue delay.

Despite the post-incident nature of the adjuster's inspection, PW2 conducted a site visit to the petrol station, interviewed personnel, observed the dipping test and assessed repair costs consistent with Merimen pricing (pages 31–77, Bundle D). To this issue, this court found that the defendant failed to produce any contradictory report or adjuster to challenge this evidence, as was highlighted in the case of Othman bin Abdullah v Zawiyah bt Ibrahim & Anor [2017] MLJU 661 (HC). Thus, this court ruled that the RM 6,000.00 cost for the adjuster's report was reasonable and justified.

On the repair costs of RM 48,568.05, the defendant had raised an objection that no purchase orders or delivery orders were produced to prove the replacement of new parts. The defendant stressed that such documents were essential to substantiate the invoice since DW2 testified that purchase orders must detail the vehicle’s chassis number, registration and specifications, and must be matched with delivery orders from the supplier (page 147, Notes of Proceedings). However, the plaintiff relied solely on the invoice from the centre.

Nevertheless, PW3 confirmed under oath that the plaintiff had settled the invoice [Q&A 20, WS(SP3)] and this was corroborated by PW1 [Q&A 20, WS(SP1)]. This claim was supported by the invoice dated 26.12.2023 and the CIMB fund transfer slip (pages 30–32, Bundle C). PW2 also testified that the costs were in line with Merimen guidelines [Q&A 11, WS(SP2)], though defendant’s counsel argued that no Merimen guideline was produced in evidence (page 33, Notes of Proceeding). The defendant further contended that Merimen guideline should only apply if the damage had been proven in which something they argued was not done in this case and disputed the necessity of replacing the fuel tank of the said car, asserting it could have been cleaned and reused.

This court agreed with the Plaintiff that the repair cost of RM 48,568.05 was not challenged during cross-examination and that PW2’s testimony that it aligns with Merimen rates holds substantial weight. As endorsed by Bank Negara Malaysia, the Merimen pricing system has legal standing (K Pamneer Selvam a/l Krishnan & Anor v Aminah Simbolon bt Rizal [2024] MLJU 3421, HC). This court in Mohamad Shaiful Alif bin Mohd Sharif (supra) also affirmed the Merimen system’s legitimacy in motor vehicle claims.

Regarding the defendant's emphasis on missing purchase order and delivery order documentation, this court noted that this is not a sale of goods claim, as emphasized in Windsor Aims Constructions Sdn Bhd v Mnq Builders Sdn Bhd & Ors [2017] MLJU 2039 (HC). The sworn testimony by PW2, confirming that the repair costs were consistent with approved pricing standards, obviates the need for detailed purchasing and delivery orders evidence in this context.

In furtherance from the above, one last key issue to highlight here is the matter of the purchase order and delivery order referred to by DW2. He testified that the purchase order must come from the party repairing the vehicle and be sent to the supplier. The purchase order must include details such as the chassis number, the registration date of the vehicle, the model and the number plate, all of which must correspond to the particular car in question, as he emphasized in his testimony before this court. Likewise, where there is a purchase order, there must be a corresponding delivery order. The delivery order must match what was requested by the mechanic or repair company and its contents must be consistent with the purchase order sent (page 98, Notes of Proceedings).

This Court is mindful of the evidential requirements in a sale of goods transaction. Generally, it is clear that in a claim for payment for goods sold and delivered, the seller must prove that the order was made and that the goods were received by the buyer. Such proof is commonly furnished through the production of the purchase order, delivery order and invoice that are known as the key documents (Windsor Aims Constructions Sdn Bhd v Mnq Builders Sdn Bhd & Ors [2017] MLJU 2039, HC).

However, in the context of the current case, the issue is not one of the sale of goods. It was sufficient for this court that PW2 had given sworn evidence confirming that the cost of repairs was reasonable and consistent with the price guide provided by Merimen guidelines. As such, there is no need to present each purchase order and delivery order for every component used by the service centre, since that is not the issue before this court. Whether or not the service centre purchased the goods with proof via those documents is not determinative at this stage, given that the repairs have already been completed, implying that the components were in fact obtained from suppliers pursuant to those orders and not a claim of failure to deliver the goods. This is clearly not the central issue before this court.

As for the purchase invoice and delivery order in relation to the plaintiff’s car and the Porsche Service Centre, these documents were also clearly exhibited at pages 39–40 of the adjuster’s report in Bundle D. The issue presented here was simple and straightforward.

At trial before this court, it was found that the plaintiff had successfully discharged the legal burden placed upon them for the following reasons: - a. The plaintiff established that the plaintiff, as the owner of the said car, had authorised the repair, as evidenced by the call ID to the Porsche Service Centre for the towing service to be sent to the centre for repair works accordingly; b. The plaintiffs proved that the repair costs pleaded reflected the actual expenses incurred to repair the car and the plaintiff had made the relevant payment. The plaintiff tendered oral and documentary evidence to show that the car had in fact been repaired by Porsche Service Centre; and c. The plaintiff proved that they had paid for the repairs to the said car and was therefore entitled to claim the main head of repair costs in this suit.

(D) Fourth Issue: Whether the plaintiff is entitled to recover legal expenses incurred and paid to the plaintiff’s solicitors?

It is preposterous to this court that the plaintiff’s counsel is seeking to claim legal fees amounting to RM10,800.00 specifically in the current suit from the defendant at the plaintiff’s claim against the defendant. However, the defendant’s counsel argued that, apart from there being no negligence attributable to the defendant, there was also no written or oral agreement between the plaintiff and the defendant concerning any legal obligation to bear the plaintiff’s legal fees (page 60 of the Notes of Proceedings).

Furthermore, according to the defendant’s counsel, if one scrutinizes the legal invoice dated 28.02.2024 issued by the plaintiff’s solicitors (page 51 of Bundle C), it is evident that the invoice lacks of a reference number. It was allegedly paid on 27.05.2024 (page 52 of Bundle C), but the invoice failed to include any breakdown of the work done or the charges incurred in a clear and unambiguous manner. The defendant, as such, submitted that such an ambiguous invoice was inadmissible as sole proof to claim against the defendant. Moreover, the plaintiff failed to prove that the legal fees incurred were reasonable.

In the circumstances, this court is of the considered view that such a legal fee claim would only be appropriate if the plaintiff were a lawyer claiming unpaid legal fees from his client. Regrettably, this is a suit between the plaintiff and the defendant, but it is not a claim for unpaid legal fees. To allow such a claim would blur the lines of the plaintiff’s actual claim for their own damages. This is consistent with the legal principle laid down by the Federal Court case in Golden Star & Ors v Ling Peek Hoe & Anor and another appeal [2024] 4 MLJ 749, where it was held that damages are compensatory in nature and are awarded to redress losses sustained as a result of a civil wrong committed in breach of a duty of care. Whether such damages are recoverable is a matter of proof, dependent on the evidence adduced at trial. Litigation costs, on the other hand, are discretionary. Costs refer to a sum of money the court orders one party to pay another for the expenses of litigation incurred.

It is apparent here that costs are distinct from damages. This Court refers to the observation made in N (A Child Suing Through Her Father and Litigation Representative, AF) v SNA & Anor [2025] MLJU 448, which clarified that the award of costs lies within the discretion of the trial court. In essence, this court found that plaintiff’s counsel cannot claim legal fees, charges or litigation costs as special damages in the same proceedings between the same parties.

In a final note, this court was bound by the Federal Court decision in Golden Star (supra), which affirmed that legal fees were not claimable as special damages in this context. Therefore, this court dismissed the plaintiff’s claim for legal fees and ordered costs of RM10,000.00 for this proceeding.

To sum up, this court made the following findings for the damages:- No.

Loss of use of the car of RM7,800.00

Adjuster Fees of RM6,000.00

Repair costs of RM48,568.05

Legal Fees of RM10,800.00 Dismissed TOTAL SUM RM54,568.05

92.