Ngc Energy Sdn Bhd v 1. ) Kalsom Binti Muhamad (JB-22NCvC-30-11/2023)

KALSOM BINTI MUHAMAD

GOO (GOH) SAY DOCK (NO. K/P: 650429-01-5315) (berniaga sebagai PUSAT PEMBEKAL GAS BUDIMAN CERGAS) (No. Pendaftara Perniagaan: JM0192279-H) … DEFENDAN-DEFENDAN CORAM: SURIA KUMAR A/L DURAIRAJ JOHNSON PAUL JUDGE  GROUNDS OF JUDGEMENT  26/05/2025 16:34:35 JB-22NCvC-30-11/2023 Kand. 147 April 25, 2025 2 INTRODUCTION [1] The dispute between the parties herein involves the practice in the liquefied petroleum gas (LPG) industry. BACKGROUND FACTS [2] The Plaintiff is one of the six (6) oil companies supplying LPG gas under the brand name, MIRA gas. [3]

The other underlying object of this practice would be the RM 00 deposit paid for the cylinder is attached as a value to the LPG cylinder. No one can then simply demand the cylinder without providing an exchange of value. Thus, it can only be done following the cylinder exchange or buy-back as per the industry practice.” [37] To put it simply, the industry practice ensures that the oil company or the LPG dealers’ deposit of RM 80.00 for each LPG gas cylinder is secured and no one can simply demand an empty cylinder without providing another empty cylinder exchange or without paying RM

80.00 for an empty cylinder. [38] Therefore, based on the industry practice, the Court in Solar Gas (supra) found Solar Gas had no immediate right to possession of the empty Solar Gas cylinders. His Lordship also further found that the Defendant (NGC) was at all material times ready, willing and able to conduct an exchange or buy back with Solar Gas. [39] Hence, based on the above two reasons, the Court in Solar Gas (supra) concluded that Solar Gas failed to prove its claim premised on the cause of action in tort of conversion against the Defendant April 25, 2025 10 on the balance of probabilities. Hence, Solar Gas's claim for loss of profits was also dismissed. [40] Whereas as for the Defendant’s (NGC) counterclaim in Solar Gas (supra), the Court allowed the counterclaim for Solar Gas to buy back the usable gas cylinder at RM 80.00 per unit and RM 10.00 per unit for the unusable unit based on the industry practice. [41] Both learned counsels for the Plaintiff and Defendant confirmed to this Court that there was no further appeal against the decision of the High Court in Solar Gas (supra). This only means that both Solar Gas and the Defendant therein, i.e. Plaintiff in the present case, had accepted the decision of the High Court. [42] Reverting to the facts in the present case, the Plaintiff’s cause of action against the Defendants is for hoarding or detaining the Plaintiff’s MIRA gas cylinders premised on the tort of detinue. In other words, the Plaintiff is alleging that the Defendant is unlawfully or wrongfully detaining the Plaintiff’s MIRA gas cylinders. [43] In support of their claim in detinue, the Plaintiff cited the relevant explanatory note for their claim in detinue from Bullen & Leake & Jacob’s Malaysia Precedents, 2nd edition wherein at page 962, the learned authors said as follows: - “16.245 The tort of detinue involves wrongful detention of goods by the defendant and this covers two circumstances: first where the defendant was in possession of such goods and loses them, and secondly, the refusal without justification to deliver the goods to the person so entitled. Detinue often arises in situations where the defendant initially has possession of such goods but subsequently refuses to return to the April 25, 2025 11 rightful owner without any reasonable or justifiable reason. In England, the tort of detinue has been abolished but the common law tort of detinue still survives as a cause of action in Malaysia.” [44] They also further cited the High Court case of Puspakom Sdn.Bhd. v Strateq Data Centre Sdn.Bhd. [2019] 7 MLJ 340 wherein His Lordship Darryl Goon JC (as he then was) stated as follows: - “[13] As stated above, the plaintiff’s cause of action is in the tort of detinue. Learned counsel for the defendant suggested that the tort no longer exists. However, that is not the case. No authority or basis for this contention was provided. In England and Wales, the tort of detinue may have been abolished in 1978 by the Torts (Interference With Goods) Act 1977, but it has not been abolished in our country. The common law tort of detinue still survives as a cause of action in Malaysia. … [15] In General and Finance Facilities Ltd v Cooks Cars (Romford) Ltd [1963] 2 All ER 314, Diplock LJ as he then was, pointed out at p 317, that: There are important distinctions between a cause of action in conversion and a cause of action in detinue. The former is a single wrongful act and the cause of action accrues at the date of the conversion; the latter is a continuing cause of action which accrues at the date of the wrongful refusal to deliver up the goods and continues until delivery up of the goods or judgment in the action for detinue. It is important to keep this distinction clear, for confusion sometimes arises from the historical derivation of the action of conversion from detinue sur bailment and detinue sur trover; of which one result is that the same facts may constitute both detinue and conversion. Demand for April 25, 2025 12 delivery up of the chattel was an essential requirement of an action in detinue and detinue lay only when at the time of the demand for delivery up of the chattel made by the person entitled to possession the defendant was either in actual possession of it or was estopped from denying that he was still in possession.” [45] The Plaintiff submits that they have proven their claim in detinue against the Defendants on the balance of probabilities. This is based on the discovery of more than 200000 units of MIRA gas cylinders stored at the Defendants’ premise at Lot 97, the correspondences between the parties which reveals the Plaintiff’s had demanded for the return of their gas cylinders and their right to immediate possession of the same being the owners of MIRA gas cylinders [46] Whereas the Defendants submits that the tort of unlawful detention of goods does not exist and that there are only two (2) types of tort on goods, i.e. tort of trespass to goods and the tort of conversion of goods. [47] With due respect to learned counsel for the Defendants, the common law action in tort of detinue does exist and this can be seen from LJ Diplock’s judgement in General and Finance Facilities Ltd (supra), referred to in the judgement of Puspakom Sdn Bhd (supra) above. [48] Next, learned counsel for the Defendants submit that the Plaintiff failed to plead the tort of detinue in their statement of claim. April 25, 2025 13 [49] With due respect to learned counsel for the Defendants, I disagree with his contention. I find that the Plaintiff has pleaded the material facts relating to the unlawful detention of MIRA gas cylinders in their statement of claim to establish a cause of action in the tort of detinue. [50] Evidence was adduced in the present case by both parties concerning the industry practice similar to the Solar Gas case (supra). The Plaintiff through PW1. Whereas the Defendants also agreed to the existence of the industry practice and adduced evidence to confirm the existence of this practice through their witnesses, DW1 and DW2. [51] The Plaintiff’s claim herein is premised on the tort of detinue against the Defendants which is to a certain extent similar to Solar Gas’s claim against them based on the tort of conversion. The Plaintiff had defended Solar Gas’s claim on the ground that the tort of conversion does not arise by relying on the industry practice. [52] A cause of action in conversion is a single wrongful act which accrues at the date of the conversion. Whereas a cause of action in detinue is a continuing cause of action which accrues at the date of the wrongful refusal to deliver up the goods and continues until delivery up of the goods or judgment in the action for detinue. [53] I agree with the Court’s finding in Solar Gas (supra) on the existence of the industry practice based on the similar evidence adduced by both parties in the present case on the industry practice. April 25, 2025 14 [54] I see no reason to depart from the findings made on the industry practice in Solar Gas (supra). [55] In the circumstances, based on the industry practice, it’s my finding that the Plaintiff does not have an immediate right to possession of their MIRA gas cylinders. [56] In other words, the cylinder exchange and buyback mechanism arising from the industry practice vitiates the Plaintiff’s contention that they have an immediate right to possession and the Defendants are unlawfully detaining their MIRA gas cylinders. [57] Furthermore, it’s my finding that based on the documentary evidence presented before this Court, MIRA gas cylinder exchanges have been ongoing between the parties since sometime in 2021. This is even before the Plaintiff’s discovery that the Defendants were hoarding about 200,000 units of gas cylinders at their premises in Lot 97 in January 2022. [58] In addition, there were eight (8) exchanges of the MIRA gas cylinders carried out between the parties in the year 2022. This is after the discovery by the Plaintiff in January 2022 that the Defendants were hoarding about 200000 MIRA gas cylinders at their premises in Lot 97. [59] Subsequent correspondence from the Defendants vide letter dated 3rd February 2023 to the Plaintiff’s solicitors also indicates that the Defendants were prepared to continue with the cylinder exchanges with the Plaintiff. The evidence before this Court does not indicate otherwise. April 25, 2025 15 [60] There were continuous negotiations on the exchanges between the parties. [61] Finally, the complaint by Plaintiff to the Ministry concerning the Defendants hoarding their MIRA gas cylinders at the premises in Lot 97 did not find any wrongdoing on the part of the Defendant. [62] Pursuant to the Plaintiff’s complaint, the Ministry had called the LPG suppliers for a meeting on 3.11.2022. Thereafter the Ministry issued a letter to the Plaintiff placing on record that the LPG suppliers had agreed during the meeting to be responsible for ensuring there will be sufficient supply of gas cylinders in the market and they must hold discussions on the issues which arise including at the level of the dealers or distributors. The Ministry also further stated that MyGaz had agreed to discuss with the Plaintiff regarding the MIRA gas cylinders stored at the Defendants’ premises. [63] From the documentary evidence produced by the Defendants, the Court also notes that even prior to 2022 and 2023, there was a raid by the Ministry at the Defendants’ premises on 11.02.2021 concerning the storage of MIRA gas cylinders, but no action was taken by the Ministry. [64] In the foregoing, based on the existence of the industry practice and evidence of exchange of the MIRA gas cylinders between both parties in the years 2021 and 2022, the fact that the Defendants were prepared and willing to continue with the cylinder exchanges with the Plaintiff in the year 2023, I find that the Plaintiff have failed to prove their claim on the tort of detinue against the Defendants on the balance of probabilities. April 25, 2025 16 [65] Next, the Plaintiff also alleges that the Defendants had interfered with its trade and business unlawfully. [66] According to the Plaintiff, the LPG market in this country is saturated. The general strategy for an oil company is to displace a competitor’s cylinders by substituting the competitor’s cylinders in the market with its own cylinders. This is because LPG can only be sold in cylinders and the oil company must have sufficient LPG cylinders in the market to displace the competitors’ cylinders. In support of their contention, the Plaintiff cited the decision LY Furniture & Anor v Lifestyle Enterprise Inc & Anor [2015] 1 LNS 1557 and Megnaway Enterprise Sdn Bhd v Soon Lian Hock (NO2) [2009] 8 CLJ 130. [67] In Megnaway Enterprise (supra), Low Hop Bing J (as he then was) held as follows: - “Unlawful Interference With Trade [48] The elements which constitute the tort of unlawful interference with trade or business are:

Interference with the plaintiff's trade or business;

Unlawful means;

Intention to injure the plaintiff; and

The plaintiff is injured thereby. (See Bullen & Leake & Jacob's Precedents of Pleadings [1990] p. 464).” [68] Learned Counsel for the Defendants submits that given the industry practice, the Defendants have not interfered with the Plaintiff’s trade or business unlawfully. April 25, 2025 17 [69] It’s my finding that the evidence adduce before the Court does not reveal any intention on the Defendants’ part to injure the Plaintiff by unlawfully interfering with their trade or business. [70] Firstly, I have found that the Plaintiff does not have an immediate right to possession of the MIRA gas cylinders based on the industry practice, following the decision in Solar Gas (supra). [71] Secondly, the Defendants were already exchanging the empty MIRA gas cylinders with the Plaintiff in 2021 and 2022. However, the exchanges of the MIRA gas cylinders stalled due to parties could not agree on the cost of transportation for future exchanges, the location for the delivery and the Plaintiff not wanting to pay the Defendants for the outstanding transport charges to their plant in Ipoh, Perak for the sum of RM 34,965.00. [72] Thirdly, in the year 2023, the Defendants vide their letter to the Plaintiff’s solicitors dated 3.2.2023 proposed how the exchange and buyback is to be carried out and also for the outstanding transportation charges for RM 34,965.00 to be paid first. The Plaintiff vide their solicitors’ letter dated 08.03.2023 to the Defendants agreed to the exchange or buy back the useable cylinders at RM 80.00 per unit but not on the terms and conditions proposed by the Defendants and also not agreeable to pay the outstanding transportation charges for RM 34,965.00. [73] The above facts clearly show that both parties wanted to follow the industry practice but they could not agree on the terms how it was to be carried out and the sum RM 34,965.00 outstanding due to the Defendants was also a hindrance between both parties. April 25, 2025 18 [74] I find that the above facts do not indicate any intention on the Defendants part to injure the Plaintiff by unlawfully interfering with their trade or business. [75] Furthermore, I have also found that the Plaintiff has failed to prove its claim against the Defendants for wrongfully detaining the MIRA gas cylinders. If the Defendants are not wrongfully detaining the MIRA gas cylinders, surely, they cannot be interfering with their trade or business. [76] In the circumstances, I find that the Plaintiff has failed to prove on the balance of probabilities that the Defendants had unlawfully interfered with its trade or business and caused injury to the Plaintiff. [77] In Solar Gas (supra) Nazlan J found that it would be unconscionable for Solar Gas to ignore the defence of industry practice in pursuing its claim in tort of conversion against NGC, the Plaintiff herein. Similarly, in my judgement, the same would apply to the Plaintiff herein in pursuing their claim in the tort of detinue and unlawful interference with trade against the Defendants. [78] In conclusion, it’s my finding that since the Plaintiff have failed to prove their claim against the Defendants based on the tort of detinue and for unlawful interference with its trade or business and causing injury to the Plaintiff, they are therefore not entitled for any damages in the form of loss of profits, loss of opportunity to grow business, additional operational expenditure to buy new gas cylinders and exemplary damages. April 25, 2025 19 [79] In Solar Gas (supra), the claim for loss of profits and additional operational expenditure to buy new gas cylinders based on the tort of conversion was dismissed. [80] Similarly, the Plaintiff’s claim herein for all the above damages against the Defendants is dismissed. [81] Be that as it may, I find the Plaintiff’s statement of claim apart from pleading a cause of action in detinue discloses the facts relating to the industry practice of buying back and exchanging the gas cylinders. It further discloses that the Defendants are not following the industry practice for the gas cylinders to be exchanged or bought back. [82] Further the Plaintiff also in prayers 3 (a) and (b) of their statement of claim have prayed for an Order against the Defendants to compel them to exchange the MIRA gas cylinders with other cylinders and or to buy back the MIRA gas cylinders upon assessment by an independent third party on the conditions of the gas cylinders. The price proposed by the Plaintiff to be paid to the Defendants per unit of the cylinder is as follows: - No. Condition of the said MIRA Gas Cylinders ascertained by 3rd party assessor engaged by the Plaintiff Price per cylinder (RM)

Serviceable 80.00

(ii) The cylinder requires requalification or reconditioning 60.00

(iii) Cylinder to be scrapped 10.00 April 25, 2025 20 [83] The Defendants have agreed to the above price during the oral submissions. [84] The Plaintiff in their pleading repeatedly pleaded that they are willing to conduct the exchange and or buy-backs of the MIRA gas cylinders with the Defendants. [85] In Solar Gas (supra), concerning the industry practice, the Court went on further to state as follows: - “[73] Although strictly industry practice does not have force of law (see Majlis Angkatan Tentera Malaysia v. Mohd Nurul Ami Mohd Basri [2019] 2 CLJ 772; [2019] 2 MLJ 433) it is undeniably widely practised and accepted industry norms and behaviour relating to the collection and exchange or return of cylinders. [74] This must mean that it would be unconscionable for the plaintiff to ignore the defence of industry practice in pursuing its claim in conversion. In this context, reference ought to be made to the decision of the Court of Appeal in KGN Jaya Sdn Bhd v. Pan Reliance Sdn Bhd [1996] 2 CLJ 611; [1996] 1 MLJ 233 which held as follows: We are of the view that it would be a travesty of justice if we were to accede to the appellant’s arguments. We are left in no doubt that the undisputed facts of this case admit of the conclusion that the respondent was, by the conduct of the appellant, lulled into the belief that the appellant had no challenge to the accounts, leave alone the legal relationship between the parties. To put it another way, the appellant, by its silence coupled with other circumstances of the case, encouraged the respondent to believe that it intended to raise no challenge to the existence of a prior legal relation between the parties or to the figure which the account showed as owing by it. Having do so, it ought not to be permitted to now contend otherwise. It follows that it does not, therefore, lie in the April 25, 2025 21 mouth of the appellant to now deny the respondent’s claim. It would be plainly inequitable to do so. An examination of the facts leads us to this conclusion. The legal basis upon which such a conclusion may be sustained is well-settled and it is now beyond question. See Boustead Trading [1985] Sdn Bhd v. Arab Malaysian Merchant Bank Berhad [1995] 3 MLJ 331.” [86] Based on evidence led by both parties, it’s my finding that the industry practice came to a deadlock between the parties for some time due to not being able to agree on the location for the delivery of the gas cylinders and the cost of the transportation charges. It was also further compounded by the fact that the Plaintiff was not willing to pay the outstanding transportation charges RM 34,965.00 to the Defendants. [87] Henceforth, I find that the Plaintiff has successfully proven their claim on the balance of probabilities against the Defendants for wanting the Defendants to adhere to and follow the industry practice. [88] Therefore, to necessitate the industry practice and following the decision in Solar Gas (supra), I allow Plaintiff’s claim to exchange and or buy back their gas cylinders from the Defendants. [89] According to the Plaintiff, as of June 2023, they estimate 100000

MIRA gas cylinders are stored at the Defendants’ premises at Lot But according to the Defendants, the number of empty MIRA gas cylinders at their premises is only 63,648 based on the joint inspection held on 20.11.2023 and not as contended by the Plaintiff. April 25, 2025 22 [90] Hence, there is a dispute between the parties about the exact number of MIRA gas cylinders stored at the Defendants’ premises. [91] Both parties also agreed to appoint Siraga IEM Sdn. Bhd as the independent assessor to determine the condition of the MIRA gas cylinders. [92] Lastly, in my observation, given the current industry practice, the stakeholders in the liquefied petroleum gas (LPG) industry and the Ministry must look into ways to prevent a deadlock in the exchange and buyback of gas cylinders from arising amongst the gas suppliers, dealers and distributors by introducing proper regulation and enforcement. [93] This is to ensure the players in the LPG industry which includes dealers and distributors adhere to the industry practice and there is no shortage of supply of certain brands of gas which is sought by the end consumer. [94] The mere role of an advisor by the Ministry to the LPG suppliers seems to be insufficient to resolve a deadlock in the exchange and buyback of gas cylinders. Counterclaim [95] The Defendants’ counterclaim for the sum of RM 34,965.00 is for transportation costs of the Plaintiff’s MIRA gas cylinders delivered to their plant in Ipoh for the year 2022. April 25, 2025 23 [96] In support of their claim, the Defendants rely on eight (8) invoices for the eight (8) trips made by them to the Plaintiff’s plant in Ipoh to deliver the gas cylinders. [97] Each invoice for the transportation of the Plaintiff’s MIRA gas cylinders to the Plaintiff’s plant in Ipoh is supported by a cylinder exchange note which states the quantity of gas cylinders delivered to the Plaintiff’s plant. This exchange note has an acknowledgement receipt by the Plaintiff’s representative confirming receipt of the quantity of gas cylinders delivered. [98] In addition to the cylinder exchange note, these invoices are also supported by the Plaintiff’s material exit pass/gate pass to authorise the Defendants to exit the Plaintiff’s plant with the number of My Gaz empty cylinders equivalent to the MIRA gas cylinders delivered by the Defendants. [99] The rate charged by the Defendants for the delivery of per unit of the Plaintiff’s gas cylinders was RM 4.50. [100] The Defendants had previously in the year 2021, delivered to the Plaintiff at their plant in Ipoh the MIRA gas cylinders and they were paid for their transportation services by the Plaintiff. [101] However, for the transportation services for the year 2022, the Plaintiff refused to pay the Defendants stating that there was never any agreement between them based on similar transportation costs of RM 4.50 per unit gas cylinder for the 2022 exchanges. April 25, 2025 24 [102] Plaintiff submits that the Defendants failed to produce any evidence to show that there was an agreement on the transportation cost of RM 4.50 per cylinder for the year 2022. [103] The Defendants also produced the notice of demand sent by their previous solicitors dated 1.9.2022 demanding the outstanding transportation cost of RM 34,965.40. The Plaintiff through their previous solicitor's letter dated 11.10.2022 had refuted this demand. [104] The Defendants also rely on the Plaintiff’s email dated 26.2.2021 and 3.3.2021 in support of their claim for the transportation cost, wherein the Plaintiff had agreed to RM 4.50 as the cost per unit. However, the Plaintiff contends that this was only with regard to the exchanges for the year 2021 and not for the year 2022 exchanges. [105] In my judgment, upon perusing the documents adduced by the Defendants in support of this claim, I am of the opinion that the Plaintiff is estopped from denying the Defendants for this transportation cost. [106] Firstly, if the Plaintiff had yet to reach an agreement with the Defendants on the transportation cost for year 2022 exchange, they should have instructed their personnel at the plant in Ipoh not to accept delivery of the MIRA gas cylinders which were being delivered by the Defendants. [107] The Defendants had made eight (8) trips to the Plaintiff’s plant in Ipoh, and the delivery of the Plaintiff’s gas cylinders was duly accepted by the Plaintiff’s representative there. April 25, 2025 25 [108] Secondly, the material exits pass/gate pass issued by the Plaintiff to the Defendants to take an equivalent number of My Gaz cylinders out of the Ipoh Plant impliedly acknowledges that the Plaintiff had accepted the delivery of their MIRA gas cylinders transported by the Defendants to their plant in Ipoh. [109] The Defendants did not charge any new higher rate but the same rate as they had charged previously for the exchanges in the year 2021. [110] Furthermore, there was also no immediate protest by the Plaintiff after each of the eight (8) deliveries were made by the Defendants. The last delivery was on 4.7.2022 and the Plaintiff only vide email dated 3.8.2021 notified the Defendants that they will not proceed with the Defendants’ claim for the invoices since the charges were not agreed upon. [111] Next, the Plaintiffs protested through their solicitors after the Defendants had made a demand vide their solicitors’ letter dated 1.9.2022 for the outstanding sum. [112] The facts indicate that the Plaintiff was quite happy to receive the eight consignments of MIRA gas cylinders delivered by the Defendants on different dates between May to July 2022 to their plant at Ipoh but they were not prepared to pay for the same. This was probably why they did not protest when each delivery took place, despite their contention that the transportation charges were not agreed upon. April 25, 2025 26 [113] It’s my finding that the Plaintiff had taken delivery of their MIRA gas cylinders transported by the Defendants and the Defendants had duly rendered their transportation services. [114] Hence, the Plaintiff is now estopped from denying the Defendants their transportation charges on the ground that the rate for the year 2022 has yet to be agreed after taking delivery of their MIRA gas cylinders transported by the Defendants. [115] In Daya Matang Sdn Bhd v Pelangi Forwarding Sdn Bhd [2014] CLJU 1947, it was decided by the Court of Appeal as follows: - “[12] We agree with learned counsel for the plaintiff that it was never in dispute at the trial that the services were done lawfully, that the plaintiff did not evince any intention to carry out the services gratuitously, and that the defendant received and benefited from the services rendered (s. 71 of the Contracts Act 1950; Dream Property Sdn Bhd v. Atlas Housing Sdn Bhd [2013] 7 CLJ 969 (CA)). We also agree that the defendant is estopped from denying that the services were properly rendered because the defendant did not at any time notify the plaintiff of any discrepancies, despite being put on notice in all of the Unpaid invoices………… [emphasis added]” [116] Please also see Sykt Pakar Kayu & Perdagangan Sdn Bhd v MAA-SK Sdn Bhd [1986] CLJ Rep 694, wherein V.C. George J (as he then was) was of the view that the Defendants in that case was estopped from raising various complaints about the goods after the goods were delivered and the deliveries were acknowledged during the Plaintiff’s claim at the stage of summary judgement proceedings. April 25, 2025 27 [117] In the circumstances, I find the Defendants have proven their counterclaim against the Plaintiff for the outstanding transportation charges for RM 34,963.00 on the balance of probabilities. [118] Next, the Defendants submit that they are entitled to damages in the event the interim injunctions are set aside. [119] In my judgment, given this Court’s decision in line with the industry practice in allowing the Plaintiff’s claim to conduct the exchange and or buy back of the cylinders, the interim injunction has to remain until the whole exercise of exchange and or buy back of the cylinders is over. [120] Therefore, the question of the interim injunction being set aside at the present moment and the Defendants being entitled to damages does not arise. [121] In any event, it’s my finding that the Defendants have failed to adduce any evidence as to the damages suffered by them due to the interim injunction. [122] The Defendants also pray for storage costs and security charges for storing the Plaintiff’s MIRA gas cylinders from 10.11.2023 till the date of judgment. In my opinion, the Defendants have failed to prove this claim. [123] Although the claim for storage cost was allowed in Solar Gas (supra), in my view, given the industry practice mechanism, the element of storage cost cannot arise. This is because the suppliers, April 25, 2025 28 distributors and dealers in any event have to store the gas cylinders to carry out the exchanges and buy backs. [124] In addition, I also find no evidence was adduced by the Defendants on the storage costs and security charges. This claim therefore is dismissed. [125] Next, on their claim for damages for loss of reputation and goodwill, the Defendants have conceded that they are not proceeding with this claim. Hence, this claim is dismissed. [126] Lastly, the Defendants also sought exemplary damages. Given that the Defendants were not able to prove their other claim for damages, this claim too has to be dismissed.

[127] In the foregoing, the Plaintiff’s claim and Defendants’ counterclaim are allowed as follows: - i. A joint inspection to be held by both parties within fourteen

days from the date of judgment with the presence of their solicitors at the Defendants’ premise located Lot 97, Jalan Muar, Parit Othman, Parit Sulong,83500 Batu Pahat, Johor to determine the number of MIRA gas cylinders stored at the said premise. ii. Siraga IEM Sdn. Bhd (Company No. 314335-K) is appointed as the independent assessor to determine the condition of the April 25, 2025 29 MIRA gas cylinders on the Defendants’ premises within fourteen (14) days from the date of inspection. iii. The said assessor is to determine how many of the MIRA gas cylinders are: - a) Serviceable; b) Requires requalification or reconditioning c) To be scrapped iv. Parties are bound by the determination made by Siraga IEM Sdn. Bhd. in para iii above. v. Thereafter, parties to mutually conduct the exchange of the gas cylinders with the Plaintiff exchanging one unit of the MIRA gas cylinders from the Defendants with one unit of MyGaz cylinders. vi. The exchange is to be carried out at the Defendants’ premises located at Lot 97, Jalan Muar, Parit Othman, Parit Sulong, 83500 Batu Pahat, Johor. vii. The exchange is to be carried out by using the Plaintiff’s manpower, equipment and transportation. viii. This exchange is to be carried out within sixty (60) days from the date the assessor determines the condition of the gas cylinders at the Defendants’ premises. April 25, 2025 30 ix. The Plaintiff is at liberty to buy back cylinders that require requalification or reconditioning and to be scrapped during the exchanges. x. In the event, if the Plaintiff is unable to complete the exchange of the gas cylinders within sixty (60) days, the Plaintiff must buy back the remainder gas cylinders from the Defendants at the following price. No. Condition of the said MIRA Gas Cylinders ascertained by 3rd party assessor engaged by the Plaintiff Price per cylinder (RM)

Serviceable 80.00

(ii) The cylinder requires requalification or reconditioning 60.00

(iii) Cylinder to be scrapped 10.00 xi. The above buy-back must be completed by the Plaintiff within one month after the expiry of the sixty (60) days for the exchange of the gas cylinders. xii. The interim injunction dated 9.11.2024 shall remain in force until the last gas cylinder is exchanged or bought back by the Plaintiff. xiii. In the event the Plaintiff fails to buy back the balance gas cylinders from the Defendants as stipulated in para x and xi above, the Defendants is at liberty to apply to enter judgment against the Plaintiff for the sum based on the quantity of serviceable cylinders, cylinders which require requalification or reconditioning, cylinders to be scrapped that has been April 25, 2025 31 determined by the assessor based on the price agreed upon both parties as stated in para x above together with interest at the rate 5% per annum from the date of judgement and cost. xiv. Defendants’ counterclaim for the sum of RM 34,946.00 is allowed with interest at 5% per annum from 1.9.2022 until the date of full realisation. xv. The cost of appointing the assessor is to be shared equally by both parties. xvi. Each party to bear their respective cost of the action herein. xvii. Liberty to apply. Dated this 25th April 2025 at Muar in the State of Johor. SURIA KUMAR DJ PAUL Judge High Court of Malaya Muar Johore Darul Ta’zim Counsels: For the Plaintiff: Ong Boo Seng, Yong Kah Seng, Amos Khaw Aik Ween April 25, 2025 32 For the Defendants: Quek Cheng Chui Solicitors: For the Plaintiff Messrs Linda Wang Su & Boo Advocates & Solicitors Level 7, Menara Milenium Jalan Damalela Pusat Bandar Damansara 50490 Kuala Lumpur [Ref. No.: 20220408/BSO/AMO/YKS/ktl] For the Defendants Messrs Junaida Afuan & Quek Advocates & Solicitors No. 12, Tingkat Satu Jalan Sayang 84000 Muar Johor [Ref.No.: JAQ/M/LIT/4/2024/ZA] Hearing Date : 27th November 2024, 16th January 2025 Decision Date: 25th April 2025