Power Star Machinery Sdn Bhd v 1. ) Chuah Geok Yan (Berniaga Sebagai dan Atas Nama Marina Machinery Trading) (BA-12BNCC-12-08/2022)

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DALAM MAHKAMAH TINGGI MALAYA DI SHAH ALAM DALAM NEGERI SELANGOR DARUL EHSAN, MALAYSIA (DALAM BIDANGKUASA RAYUAN) RAYUAN SIVIL NO.: BA-12BNCC-12-08/2022 ANTARA POWERSTAR MACHINERY SDN. BHD. (No. Syarikat: 887839-P) − PERAYU

Lampiran

Lampiran 13 untuk memasukkan penghakiman terus di bawah Aturan 14 Kaedah-Kaedah Mahkamah 2012 terhadap Defendan-Defendan dengan kos RM1,500.00 dibayar oleh Defendan-Defendan kepada Plaintif. [3] Pihak Defendan-Defendan telah merayu ke Mahkamah Tinggi terhadap keputusan tersebut. Pada 5-12-2018, Mahkamah Tinggi telah membenarkan rayuan Defendan-Defendan dan kes ini dikembalikan ke Mahkamah Sesyen untuk perbicaraan penuh. Saksi-saksi [4] Perbicaraan penuh telah dijalankan dan pihak Plaintif telah kemukakan seorang saksi iaitu En Peng Gai Hock (SP1) dan Defendan-Defendan telah kemukakan dua orang saksi iaitu En Chuah Geok Yan (SD1) dan En Chuah Geok Boon (SD2). Kes Plaintif [5] Plaintif adalah sebuah syarikat persendirian yang menjalankan perniagaan pembekalan dan perkakasan (hardware) dan produk kejuruteraan, Defendan Pertama (D1) menjalankan perniagaan pembekalan dalam perkakasan dan mesin-mesin atas nama Marina Machinery Trading. [6] D1 telah mula melanggan Plaintif sejak tahun 2015 untuk barang-barang yang dipesan melalui telefon atau secara pesanan terus dari syarikat Plaintif. Defendan Kedua (D2) ialah adik kepada D1 dan merupakan penjamin kepada D1. [7] Plaintif akan mengeluarkan invois-invois kepada D1 atas barang yang telah dihantar kepada D1 untuk pembayaran. Sejak D1 melanggani Plaintif pada tahun 2015, D1 tidak pernah membuat apa-apa aduan atau mengembalikan mana-mana bahagian pesanan kepada Plaintif atau pun mempertikaikan kesahan invois-invois yang dikeluarkan oleh Plaintif kepada D1. Selanjutnya D1 telah gagal membayar invois-invois Plaintif dan jumlah tertunggak mencecah RM585,082.70. Kes Defendan-Defendan [8] Surat jaminan bertarikh 2-1-2016 adalah satu jaminan bagi syarikat Marina Machinery Trading Sdn Bhd. Surat jaminan tersebut tiada kaitan dengan perniagaan D1 iaitu Marina Machinery Trading. [9] Surat jaminan tersebut tidak dimatikan setem dan tidak pernah dibayar duti setem. Tarikh perlaksanaan surat jaminan tersebut juga tidk dinyatakan. Plaintif telah meminda surat jaminan tersebut kepada jaminan bagi Marina Machinery Trading tanpa pengetahuan atau persetujuan Defendan-Defendan. Surat jaminan tersebut adalah tidak sah dan tidak boleh dikuatkuasakan. [10] D1 mengalami penyakit “schizophrenia with OCD” yang menjadikannya tidak mampu menjalankan perniagaan dan tidak boleh membuat pesanan barang seperti yang didakwa oleh Plaintif. Defendan-Defendan tidak pernah memesan dan tidak pernah menerima barang seperti yang didakwa oleh Plaintif dan Plaintif tidak mengemukakan “Purchase Order” dan “Delivery Order” kepada Defendan-Defendan. [11] Secara alternatif, Defendan-Defendan menyatakan barang yang didakwa oleh Plaintif adalah tidak berkualiti dan barang telah dipulangkan kepada Plaintif. Plaintif tidak mempunyai kausa tindakan terhadap Defendan-Defendan. Isu untuk dibicarakan 1. sama ada Plaintif berhak menuntut jumlah sebanyak RM585,082.70 daripada Defendan-Defendan? 2. sama ada Defendan-Defendan berhutang kepada Plaintif dalam jumlah RM585,082.70 untuk barang yang dibekalkan oleh Plaintif? 3. sama ada surat jaminan yang ditandatangani oleh Defendan-Defendan adalah sah? 4. sama ada surat jaminan yang dipaparkan tersebut adalah dilaksanakan oleh Defendan-Defendan bagi pihak D1 atau surat jaminan tersebut adalah ditujukan kepada entiti lain dan bukanlah D1? 5. sama ada pembuktan tuntutan Plaintif terhadap Defendan-Defendan atas hutang penjualan dan pembelian (“Goods Sold and Delivered”) perlu disertakan/dibuktikan dengan Bil Pesanan Barang (“Purchase Order”) dan Bil Penyerahan Barang (“Delivery Order”) yang sah dan baik? 6. sama ada bil-bil invois yang diisukan oleh Plaintif terhadap Defendan-Defendan adalah bil-bil invois tidak sah, tidak benar dan merupakan suatu pemalsuan (“fabricated”)? 7. sama ada pesanan barang yang berlaku adalah daripada D1 dan/atau kemungkinan daripada D1 yang merupakan seorang pesakit “schizophrenia with OCD”? Errors made by the SCj [4] In the Memorandum Rayuan dated 13-9-2022, the Appellant listed the errors made by the learned SCj as follows: (a) ... khilaf dari segi undang-undang dan fakta dalam menolak tuntutan Perayu terhadap Responden-Responden untuk menuntut jumlah RM585,082.70 untuk barang yang telah dijual dan dihantar kepada Responden-Responden. (b) ... khilaf dari segi undang-undang dan fakta dalam membuat keputusan bahawa Responden-Responden ... khilaf dari segi undang-undang dan fakta dalamtidak bertanggungjawab untuk membayar jumlah RM585,082.70 kepada Perayu. (c) ... khilaf dari segi undang-undang dan fakta dalam membuat keputusan bahawa tiada bukti yang menunjukkan bahawa barang tersebut telah dijual dan dihantar oleh Perayu kepada Responden-Responden dan tiada kontrak yang dimasukkan oleh pihak Perayu dan Responden-Responden. In the additional Memorandum Rayuan daterd 19-10-2022, the Appellant listed the errors made by the learned SCj as follows: (d) ... khilaf dari segi undang-undang dan fakta dalam menentukan bahawa saksi Plaintif iaitu SP1 tidak diberi kuasa oleh pihak Plaintif untuk hadir sebagai saksi dan memberi keterangan bagi pihak Plaintif. (e) ... khilaf dari segi undang-undang dan fakta dalam menggunapakai seksyen 114(g) Akta Keterangan 1950 terhadap Plaintif atas alasan Plaintif gagal memanggil tiga orang pengarah dan/atau seorang Li Xi Nan untuk memberi keterangan di Mahkamah tanpa mengambil kira bahawa ia adalah budi bicara mutlak Plaintif ke atas pemilihan saksi-saksi yang ingin dipanggil semasa perbicaraan. (f) ... khilaf dari segi undang-undang dan fakta dalam memutuskan bahawa surat jaminan yang merupakan suatu jaminan peribadi adalah tidak sah dan tidak boleh dikuatkuasakan terhadap D2 atas sebab, antara lainnya, D2 bukan pemilik berdaftar atau memegang mana-mana jawatan di Marina Machinery Trading. The Oral Submissions on 30-11-2022 before this Court [5] In the hearing of this appeal before me via Zoom platform on 30-11- 2022, the learned counsels for the parties had made their oral submissions despite the written submissions that were filed in the eFiling. [6] Briefly the learned counsel for the Appellant submitted that – • at first, the Sessions Court had allowed the Plaintiff’s application (Powerstar Machinery Sdn Bhd) for summary judgment. • at the appeal stage, the learned Judge had allowed the appeal on technical aspects, i.e on section 90A of the Evidence Act regarding the computer-generated invoices. The case was reverted to Sessions Court for the full trial. • after the full trial, the Plaintiff’s claims were dismissed. • in the grounds of judgment, the SCj had made gross errors on 2 issues – (i) there is no contract, no fraud, no forgery by the Plaintiff in delivering the goods to the D1. No cogent evidence tendered by the Defendants. (ii) running account showed that the Defendants had unpaid balance of payments to the Plaintiff. Goods Sold and Delivered to the Defendants and the transactions can be seen in the running account. The learned SCj failed to consider this point. The Singapore’s case decision was referred to. • the claims by the Plaintiff is a small amount and the Court must reconsider and exercise her discretion. • there is a proximity between D1 & D2. Both of them are brothers and there is similarity in their businesses. D2 is deemed to know about the purchase of the goods by D1. As the guarantor, D2 must pay the Plaintiff. There is a valid guarantee. [7] Briefly the learned counsel for the Respondents (D1 and D2) submitted that – • section 90A of the Evidence Act 1950 is irrelevant. Tax invoices are not computer-generated. • the learned SCj did not mention at all about fraud or forgery. • The tax invoices must attach with the purchase order and delivery order. These documents turned to be a contract. Without the purchase order and delivery order that can show the signature and the company’s stamp therefore the Plaintiff failed to proof its claims. purchase order and delivery order. The only Plaintiff’s witness cannot confirm about the documents. • the Plaintiff has the burden to proof its claims under the Sales and Goods Act 1979. • the Letter of Guarantee and stamp certificate are marked as ID and there are discrepancies. The copies of the documents are different from the copies that were tendered in the full trial. • regarding the proximity relationship between D1 and D2, it was unpleaded and irrelevant. • regarding the running account, the Respondents had stated in the defence at paragraph 15. The outstanding payments as detailed in paragraph 11 of the statement of claim were goods not sold and delivered to the Respondents. The Respondents had requested the Appellant to give the purchase orders, delivery orders and invoices but the Appellant refused and ignored it. The judgment by this Court on 6-12-2022 [8] On 6-12-2022, this Court after full hearing of the appeal had decided no basis to interfere with the learned SCj’s findings of fact and the learned SCj also cannot be said was plainly wrong or that there was any flaw in the evaluation of the evidence led. My brief judgment is as follows: Selepas meneliti keseluruhan rekod rayuan, hujahan bertulis dan hujahan lisan pada 30-11-2022 (via Zoom), Mahkamah ini telah mendengar hujahan lisan peguam-peguam, Mahkamah ini mendapati tuntutan Perayu adalah berdasarkan kepada semua dokumen untuk membuktikan bahawa barang yang dipesan dan dihantar sebagaimana yang diplidkan kepada Responden/Responden (Defendan-Defendan). Perayu (Plaintif) pada peringkat permohonan interlokutori untuk memperoleh penghakiman terus berjaya di mana Pn HMS yang sama membenarkan permohonan Perayu (Plaintif). Walau bagaimana pun, apabila didengar diperingkat rayuan, Mahkamah Tinggi membenarkan rayuan Responden/Responden (Defendan-Defendan). Maka, Pn HMS yang sama mendengar tuntutan Plf dan pembelaan Defendan-Defendan. Alasan Penghakiman Pn HMS telah menganalisa keseluruhan keterangan terbaik di hadapannya. Tuntutan jumlah tertunggak/kena dibayar oleh Responden/Responden (Defendan-Defendan) sebanyak RM585,082.70 terletak di bahu Perayu (Plaintif). Kegagalan Perayu (Plaintif) melunaskan tanggungjawabnya untuk membuktikan setiap barang yang dikatakan dipesan dan dihantar amat penting bukan sahaja diperingkat Mahkamah Rendah tetapi juga di peringkat rayuan ini. Pada perenggan 36 AP, Pn HMS menyatakan bahawa Plaintif juga mengesahkan bahawa syarikat D2 (Marina Marketing Sdn Bhd) mempunyai urusan dengan syarikat Plaintif. Namun dalam hal ini, Marina Marketing Sdn Bhd bukan menjadi pihak yang kena tuntut. Mahkamah berpendapat dapatan dan analisa Puan HMS mengenai fakta adalah jelas dan tidak terdapat kekhilafan dari segi fakta dan undang-undang bagi keputusan yang dicapai oleh Puan HMS. Dengan ini, Mahkamah ini memutuskan untuk menolak rayuan Perayu/Plaintif dengan kos sebanyak RM7,000.00 tertakluk kepada fi alokatur. Keputusan Puan HMS dikekalkan. [9] Now the Appellant appeal to the Court of Appeal and the grounds of judgment contain my reasons. Principles of appellate intervention [10] In the case of Ahmad Zulfendi bin Anuar v. Mohd Shahril bin Abdul Rahman [2022] 4 MLJ 892, the High Court held − “[7] The central feature of appellate intervention is well-established. It is to ascertain whether or not the trial court had arrived at its decision or finding correctly on the evidence and on the basis of the governing law. The Federal Court in the case of Gan Yook Chin (P) & Anor v. Lee Ing Chin @ Lee Teck Seng & Ors [2005] 2 MLJ 1, where the Federal Court held as follows: [14] In our view, the Court of Appeal in citing these cases had clearly borne in mind the central feature of appellate intervention, ie to determine whether or not the trial court had arrived at its decision or finding correctly on the basis of the relevant law and/or the established evidence. In so doing, the Court of Appeal was perfectly entitled to examine the process of evaluation of the evidence by the trial court. Clearly, the phrase ‘insufficient judicial appreciation of evidence’ melerly related to such process. This is reflected in the Court of Appeal’s restatement that a judge who was required to adjudicate upon a dispute must arrive at his decision on an issue of fact by assessing, weighing and, for good reasons, either accepting or rejecting the whole or any part of the evidence placed before him. The Court of Appeal further reiterated the principle central to appellate intervention, ie that a decision arrived at by a trial court without judicial appreciation of the evidence might be set aside on appeal. This is consistent with the established plainly wrong test. [8] Thus in Kerajaan Malaysia v. Global Upline Sdn Bhd and another appeal [2017] 1 MLJ 170 the Court of Appeal held that an appellate court will not intervene unless the trial court is shown to be plainly wrong in arriving at its conclusion and where there has been insufficient judicial appreciation of the evidence. [9] In the leading case of Ng Hoo Kui & Anor v. Wendy Tan Lee Peng (administratrix for the estate of Tan Ewe Kwang, deceased) & Ors [2020] 10 CLJ 1 the Federal Court affirmed with unmistakable clarity that the principle on which an appellate court could intervene with findings of fact by the trial court is ‘the plainly wrong test’ principle. [10] This important principle involves a number of circumstances, but must necessarily extends to situations where it can be shown that the impugned decision is vitiated with plain material errors, or where crucial evidence had been miscontrued, or where the trial judge had so manifestly not taken proper advantage of having seen and heard the witnesses or not properly analysed the entirely of the evidence before him, or where a decision was arrived without adequate judicial appreciation of the evidence such as to make it rationally unsupportable. [11] Above all, the Federal Court in Ng Hoo Kui established that the criterion that is central to appellate intervention must remain that deference to the trier of fact is still the rule and not the exception. And the plainly wrong test should not be used by the appellate court as a means to substitute the impugned decision with its own.”. Evaluation, Analysis and Findings of this Court in deciding the appeal against the learned SCj’s decision [11] Having perused the Appellant the main issues are whether the Plaintiff has the right to claim the sum of RM585,082.70 from the Respondents and whether the Respondents owed the Plaintiff the sum of RM585,082.70 for the goods delivered to the Defendants? [12] In paragraph 15 of the Alasan Penghakiman, the learned SCj stated that as the sole witness for the Plaintiff, En Peng Gai Hock was the former director of the Plaintiff. En Peng Gai Hock had resigned since 2017. En Peng Gai Hock admitted that he was not authorized to give testimony and present as the Plaintiff’s company. No letter of authorization given to the Court to proof that En Peng Gai Hock is authorized by the Plaintiff. [13] The trial Court had found that based on the Suruhanjaya Syarikat Malaysia (SSM) search dated 16-3-2021, there were 3 directors of the Plaintiff that were still with the Plaintiff since 2017. [14] Therefore, the learned SCj had concluded that “Kegagalan Plaintif memanggil tiga orang Pengarah tersebut untuk memberi keterangan di Mahkamah boleh menyebabkan anggapan di bawah seksyen 114 (g) Akta Keterangan 1950 digunapakai, iaitu bahawa wujudnya sesuatu keterangan yang boleh dikemukakan tetapi tidak dikemukakan, jika dikemukakan, tidak akan memberi faedah kepada orang yang enggan mengemukakannya.”. [15] The conclusion made by the learned SCj is in accordance with the law, there is no gross error made by the learned SCj. I would like to quote the following: (a) In the case of Ineax Engineering Sdn Bhd v. Ineax Process Sdn Bhd And Ng Wee Keat (Third Party) [2017] 1 LNS 1187, the High Court has referred to the leading decision of the Court of Appeal in Juahir Sadikon v. Perbadanan Kemajuan Ekonomi Negeri Johor [1996] 4 CLJ 1 which reaffirms the rule that “he who asserts must prove”, whereby Siti Norma Yaakob JCA (as she then was) instructively held as follows: “He who alleges must prove such allegation and the onus is on the appellant to do so. See section 103 of the Act. Thus, it is incumbent upon the appellant to produce Tan Sri Basir as his witness to prove the allegation. The fact that the appellant was unable to secure the attendance of Tan Sri Basir as a witness does not shift the burden to the respondent to produce the witness and testify as to what he had uttered, as firstly, the respondent never raised such an allegation and, secondly, has denied even making one. For this very reason, the adverse inference under section 114 (g) of the Act relied upon by the appellant cannot be accepted as establishing that if the witness had been produced, his evidence would work against the respondent. There is no obligation in law for the respondent to produce the witness as that obligation rests with the appellant, the party who alleges, and the fact that the appellant was unable to do so is fatal to his case. For this very reason too, the adverse inference under section 114 (g) is invoked against the appellant.”. Further, in the same case, the High Court referred to the following passage from the judgment of the Court of Appeal in Pernec Ebiz Sdn Bhd v. CCI Technology Sdn Bhd & Ors [2015] 2 MLJ 117− “Even though the burden upon a plaintiff in a civil suit is only to prove its case upon a balance of probabilities, it must present its case sufficiently clearly to do so. It cannot merely file pleadings, file bundles of documents, proceed to trial, call witnesses to testify and argue on the various issues and expect the court to make out the case on its own for one party or the other. The submissions failed to analyze the pleadings, the facts and the evidence as against the issues requiring a decision, and to tabulate the same so that a logical and reasoned decision could be made that satisfied the fundamental requirement of a fair and just decision. Where the party upon whom the burden of proving its case lies fails to do so, it fails to prove its case and its action must be dismissed.”. (b) In the case of Heritage Grand Vacation Club Bhd V. Pacific Fantasy Vacation Sdn Bhd [2016] 7 CLJ 679, the Court of Appeal laid down the principles on pleading − “[4] It is well-established that it is not the function of the court to build a case for the plaintiff/defendant inconsistent with the pleaded case. In Yew Wan Leong v. Lai Kok Chye [1990] 1 CLJ 1113, the Supreme Court had in strong terms held, and which still stands as a ‘gold standard’ in pleading rules and evidence, as follows: It is not the duty of the court to make out a case for one of the parties when the party concerned does not raise or wish to raise the point. In disposing of a suit or matter involving a disputed question of fact, it is not proper for the court to displace the case made by a party in its pleadings and give effect to an entirely new case which the party had not made out in its own pleadings. The trial of a suit should be confined to the pleas on which the parties are at variance. [5] The above case must be seen to be the ‘gold standard’ for pleading rules and is consistent with a long line of authorities from England as well as Malaysia. (See Janagi v. Ong Boon Kiat [1971] 1 LNS 42; Lee Ah Chor v. Southern Bank Bhd [1991] 1 CLJ 667; KEP Mohamed Ali v. KEP Mohamed Ismail [1980] 1 LNS 169). In Recaliva Design Steel (M) Sdn Bhd v. Vista Access Sdn Bhd & Anor [2008] 10 CLJ 491, the High Court held that on pleading rules and issues to be tried made the following observations: After having heard the evidence of the defendants, it is crystal clear to me that the version defendants attempted to project to me was never part of their defence. In such circumstances, the court is not obliged to consider in its judgment, stories which are not reflective of the pleadings. Pleadings are essential foundation to analyse disputes. Evidence must relate to pleadings and/or directly relevant to pleadings. The court is not concerned what issues the parties have framed for the determination of the court, when such issues cannot be reflective of the issues to be dealt with pursuant to the pleadings. [6] This ‘gold standard’ also plays an important part when parties as per the pleadings have agreed to the issues to be tried. That is to say, the issues to be tried must be as per the pleadings or arising from the pleadings and cannot be one which can be said to be the unpleaded case of the parties. The ‘gold standard’ has a number of exceptions in a restricted sense and those exceptions are not meant to override the ‘gold standard’ for pleading rules in all aspects.”. (c) In the case of Zainuddin Bin Uyub Dan Jalil Bin Tumirin [2009] 1 LNS 1139, the High Court cited the Court of Appeal case, Karumalay Vanniyan & Anor v. Ananthan Rethinam [2005] 2 CLJ 429, which was held – “A judge who is required to adjudicate upon a dispute must arrive at his decision on an issue of fact by assessing, weighing and, for good reasons, either accepting or rejecting the whole or any part of the evidence placed before him. He must, when deciding whether to accept or to reject the evidence of a witness, test it against relevant criteria. Thus, he must take into account the presence or absence of any motive that a witness may have in giving his evidence. If there are contemporary documents, then he must test the oral evidence of a witness against these. He must also test the evidence of a particular witness against the probabilities of the case. A trier of fact who makes findings based purely upon the demeanour of a witness without undertaking a critical analysis of what witness’s evidence runs the risk of having his findings corrected on appeal. It does not matter whether the issue for decision is one that arises in a civil or criminal case: the approach to judicial appreciation of evidence is the same. There are a number of important and leading cases in which the point has been considered.”. (d) The principles of “the best evidence rule” must be applied. In the case of Juta Damai Sdn Bhd v. Permodalan Negeri Selangor Bhd [2014] 5 CLJ 318, the Court of Appeal held − “Returning to the question of proof, we observe that there is no provision that requires that such loss is only provable by production of receipts. The best evidence rule requires proof not by the ‘best evidence’ but by the ‘best evidence available’. The unavailability of receipts was explained on the grounds the receipts were not kept for more than six years. The explanation is not inherently implausible.”. (e) The case of Telekom Malaysia Bhd v. KLK Electronic Sdn Bhd [2019] 4 MLJ 631 pertaining to the burden of proof. The decision of the Court of Appeal held – “[35] It is fundamental principle of law that in a civil case, the legal burden of proof lies on the party who brings the claim. The evidential burden may shift to the defendant once the plaintiff has established prima facie case.”. [16] I totally agreed with the fundamental principle of law on the provision of section 114 (g) and on the burden of proof by the learned SCj. The reason as stated by the Appellant that the SCj “khilaf dari segi undang-undang dan fakta dalam menggunapakai seksyen 114(g) Akta Keterangan 1950 terhadap Plaintif atas alasan Plaintif gagal memanggil tiga orang pengarah dan/atau seorang Li Xi Nan untuk memberi keterangan di Mahkamah tanpa mengambil kira bahawa ia adalah budi bicara mutlak Plaintif ke atas pemilihan saksi-saksi yang ingin dipanggil semasa perbicaraan.” are inaccurate. The learned SCj did not at all question the Appellant for the selection of the witness/es to be called in the trial. It is not the absolute discretion of the Appellant. The Appellant has the legal burden of proof and must established prima facie case. [17] The learned SCj held that Mr Li Xi Nan as the staff of the Appellant the person who has full knowledge on the business transactions between the Appellant and the Respondents and Mr Li Xi Nan also hold 30,000 shares and the Appellant’s sales representatives must be called as the Plaintiff’s witness. No explanation was given by the Appellant for not calling Mr Li Xi Nan. [18] The amount that was outstanding and owed by the Respondents as alleged by the Mr Li Xi Nan is not a small amount, the amount is about half of million (Ringgit Malaysia). It is puzzled why the Appellant that already resigned from the company all out to get the amount that was outstanding and owed by the Respondents and not by the Appellant’s existing directors. [19] The learned SCj as the trial judge, had examined the invoices as tendered before the Court. The learned SCj found that – • Pihak Plaintif hanya mengemukakan invois-invois sahaja dalam tuntutan ini. Mahkamah dapati dalam invois-invois tersebut di ruangan “Pesanan Penghantaran” telah dibiarkan kosong. Adakah barang yang didakwa oleh Plaintif sebagai barang yang dipesan oleh Defendan telah benar-benar dihantar kepada Defendan-Defendan? • pihak Plaintif telah gagal kemukakan pesanan pembelian (PO) oleh Defendan dan pihak Plaintif juga telah gagal kemukakan pesanan penghantara (DO) bagi membuktikan barang telah dihantar kepada Defendan-Defendan. [20] The learned SCj after the full trial, on balance of probiliteis found that the Appellant had failed to proof the existing of the purchase order made by the Respondents and delivery order sent by the Appellant. The learned SCj stated in her Alasan Penghakiman that “Mahkamah dapati bahawa dakwaan Plaintif yang tersebut tidak dibuktikan, maka ianya tidak boleh dipertahankan.”. [21] The learned SCj also had the opportunity to examine the weakness in the Appellant’s case amongst others, there were a lot of invoices had no D1’s company stamp. Further, in the invoices they were signed by many different persons. The Appellant had failed to identify the signature in the invoices. The learned SCj stated in her Alasan Penghakiman that “Atas keraguan yang terdapat pada invois-invois tersebut maka pihak Plaintif telah gagal membuktikan bahawa pihak D1 telah menerima barang yang kononnya dipesan oleh D1.”. [22] On the point regarding the Appellant’s statement of account, in paragraph 25 of the Alasan Penghakiman, the learned SCj stated that “pihak Plaintif tidak memotong jumlah wang yang telah dibayar oleh D1 kepada Plaintif. Malahan Penyata Akaun tersebut juga telah memasukkan invois yang tidak dikeluarkan kepada nama D1 tetapi dikeluarkan kepada pihak ketiga yang lain.”. [23] The learned SCj had referred to section 5 and 42 of the Sale of Goods Act 1957 (Act 382) as follows: CHAPTER II - FORMATION OF THE CONTRACT Section 5. Contract of how sale made. (1) A contract of sale is made by an offer to buy or sell goods for a price and the acceptance of such offer. The contract may provide for the immediate delivery of the goods or immediate payment of the price or both, for the delivery or payment by instalments, or that the delivery or payment or both shall be postponed. (2) Subject to any law for the time being in force, a contract of sale may be made writing or by word of mouth, or partly in writing and partly by word of mouth or may be implied from the conduct of the parties. Section 42. Acceptance. The buyer is deemed to have accepted the goods when he intimates to the seller that he has accepted them, or when the goods have been delivered to him and he does any act in relation to them which is inconsistent with the ownership of the seller, or when, after the lapse of a reasonable time, he retains the goods without intimating to the seller that he has rejected them. [24] The learned SCj is accurate in referring to the relevant sections in Act 382 pertaining to the formation of the contract pertaining to the dealings between the Appellant and the Respondents. [25] However, other relevant provisions in Act 382 also to be referred, namely, sections 31, 44 and 56, these provisions stated the duties, liability and suits for the breach of the contract − CHAPTER IV - PERFORMANCE OF THE CONTRACT Section 31. Duties of seller and buyer. It is the duty of the seller to deliver the goods and of the buyer to accept and pay for them in accordance with the terms of the contract of sale. Section 44. Liability of buyer for neglecting or refusing delivery of goods. When the seller is ready and willing to deliver the goods and requests the buyer to take delivery, and the buyer does not, within a reasonable time after such request, take delivery of the goods, he is liable to the seller for any loss occasioned by his neglect or refusal to take delivery, and also for a reasonable charge for the care and custody of the goods: Provided that nothing in this section shall affect the rights of the seller where the neglect or refusal of the buyer to take delivery amounts to a repudiation of the contract. CHAPTER VI - SUITS FOR BREACH OF THE CONTRACT Section 56. Damages for non-acceptance. Where the buyer wrongfully neglects or refuses to accept and pay for the goods the seller may sue him for damages for non-acceptance. [26] The Appellant as the claimant must be able to proof to the Court that the contract on the sale made was to the Respondents. The relevant and important documents pertaining to the purchase order, delivery, the details of the invoices must show that it belongs to the Respondents and not the third parties, etc. [27] The learned SCj cited the case of CFB Aluminium Extrusion Sdn Bhd v. Lim Soon Seng [2014] 1 LNS 1311 pertaing to the “the key documents” to proof that the goods sold and delivered. [28] In the case of Universal Cable (M) Bhd v. Bakti Arena Sdn Bhd & Ors [2000] 3 CLJ 375, the High Court held – “[2] The 1st Defendant having taken delivery of the goods must be held accountable for the payment of those goods, and the Plaintiff was entitled to sue for the price thereof.”. [29] The Respondents only can be held liable if they received the goods. Here, after the full trial, the goods were proved not delivered and also not purchased by the Respondents. This fact cannot be changed in rehearing the appeal. [30] In Open Country Dairy Ltd V. Able Food Sdn Bhd [2021] 7 CLJ 716, the Court of Appeal, Putrajaya held – “[28] For the appellant, it was submitted that by signing the sales contract, the respondent had agreed to be bound by the terms of trade. Counsel for the appellant relied on the Court of Appeal's decision in Ajwa For Food Industries Co (MIGOP), Egypt v. Pacific Inter Link Sdn Bhd & Another Appeal [2013] 2 CLJ 395 where it was held that: [17] The legal position is very clear: that parties are bound by the terms of the contract which they had executed and this includes reference to another incorporated document where those terms can be found whether they take the trouble of reading them or not. There is imputed knowledge that the terms of the document incorporated are binding as if it was written into the contract itself.”. [31] Since there is no written agreement incorporated the terms of sale of goods between the Appellant and the Respondents, therefore, the learned SCj must look into the invoices, PO and DO between the parties. none of these documents were produced in the trial. This Court in rehearing the appeal should not interfere on this finding of fact. Letter of guarantee: [32] The learned counsel for the Appellant maintain his position firmly that the learned SCj is totally erred in dismissing that the letter of guarantee is not executed and had nothing to do with D2’s company. [33] In her Alasan Penghakiman, the learned SCj had held – “[33] … Selanjutnya mengenai Surat Jaminan bertarikh 2-1-2016, Mahkamah dapati ianya satu jaminan bagi Syarikat Marina Machinery Trading Sdn Bhd. Surat Jaminan tersebut tiada kaitan dengan perniagaan Defendan iaitu Marina Machinery Trading. [34] Mahkamah meneliti Surat Jaminan tersebut dan mendapati ianya tidak dimatikan setem, ini bermakna pihak-pihak tidak pernah membayar apa-apa duti setem, Mahkamah juga mendapati tarikh pelaksanaan Surat Jaminan tersebut tidak dinyatakan. Selanjutnya, pihak Plaintif tidak mengemukakan salinan asal Surat Jaminan tersebut dan pembuat dokumen kepada Surat Jaminan tersebut tidak dipanggil sebagai saksi untuk memberi keterangan. [35] Maka Mahkamah memutuskan bahawa Surat Jaminan tersebut adalah tidak sah dan tidak boleh dikuatkuasakan terhadap Defendan Kedua kerana beliau bukanlah pemilik berdaftar atau memegang mana-mana jawatan di Marina Machinery Trading. Marina Machinery Trading ialah sebuah syarikat milikan tunggal yang ditubuhkan oleh Defendan Pertama dan Defendan Pertama adalah satu-satunya pemilik berdaftar kepada Marina Machinery Trading. [36] D2 dalam keterangannya menegaskan bahawa beliau tidak pernah menandatangani atau melaksanakan mana-mana surat jaminan/indemnity bagi pihak Marina Machinery Trading seperti yang didakwa oleh pihak Plaintif, ini kerana Marina Machinery Trading adalah perniagaan milik abangnya, iaitu D1. Defendan Kedua ialah pengarah kepada Syarikat Marina Marketing Sdn Bhd. Plaintif telah sahkan bahawa Marina Marketing Sdn Bhd juga mempunyai urusan dengan Syarikat Plaintif.”. [34] The learned counsel for the Appellant submitted that based on the High Court’s decision in considering the Appellant’s appeal against the dismissal of summary judgment application and revert this case for full trial held as follows (Chuah Geok Yan & Anor v Power Star Machinery Sdn Bhd [2019] MLJU 00287): “[14]...If this is true, the defendants proffered no explanation as to how the company seal of Marina Machinery Trading came to be affixed on the guarantee. In the absence of any explanation, the second defendant’s allegation that he had signed a blank form is unconvincing. The sessions judge held, and I agree, that this raised serious doubts on the bona fides of the defence that the guarantee is invalid.”. [35] I have read the High Court’s decision in the Respondents’ appeal [Chuah Geok Yan & Anor v Power Star Machinery Sdn Bhd that was published in CLJ @ [2019] 1 LNS 199], where Yang Arif had dealt with these points: Mental competence of D1 [12] I take first the point that the first defendant was of unsound mind and could not have ordered the goods. The second defendant produced the first defendant’s medical report and his treatment cards issued by the psychiatry unit at Kuala Lumpur Hospital. The documents showed that sometime in October 2004, the first defendant was diagnosed with schizophrenia with OCD and continues to receive treatment at the said hospital. There is nothing in the report which indicates that the first defendant’s condition impaired his ability to run a business. There is evidence that he set up his business, Marina Missionary Trading on 12 December 2014. If indeed he had been incapable of conducting the business of Marina Machinery Trading as he alleged, no explanation was proffered as to how he knew the process involved in setting up his business. [13] Looking at the evidence which the defendants relied on, I am in agreement with the sessions judge that the defence that the first defendant was non compos mantis to have ordered the goods simply does not hold water. Letter of guarantee [14] It is apt at this juncture to deal with the defendants’ claim that the letter of guarantee was invalid. The second defendant relied on the police report that he had lodged after the filing of the action to support his allegation that the letter of guarantee that he and his brother had signed was intended for Marina Marketing Sdn Bhd. He alleged that at the material time when he executed the letter of guarantee, it was a blank form. The plaintiff, he alleged, had inserted Marina Machinery Trading without his knowledge and consent. If this is true, the defendants proffered no explanation as to how the company seal of Marina Machinery Trading came to be affixed on the guarantee. In the absence of any explanation, the second defendant’s allegation that he had signed a blank form is unconvincing. The sessions judge held, and I agree, that this raised serious doubts on the bona fides of the defence that the guarantee is invalid. Admissibility of invoices and statements of account [15] I will now take the third and fourth issues together i.e. the invoices and statements of accounts relied on by the plaintiff to prove its claim. The facts are these. The invoices carried a signature. The plaintiff claimed they belonged to the second defendant, whilst the second defendant denied it. The sessions judge resolved this issue by comparing the signatures on the invoices with the second defendant’s admitted signatures, and found them to be similar. [16] It was the defendants’ contention that the sessions judge was wrong in adopting that approach as he was not a handwriting expert. I find the defendants submission on this point is contrary to section 73(1) of the Evidence Act the Evidence Act 1950. [17] The defendants next complaint relates to the admissibility of the plaintiff’s invoices and statements of accounts. It was common ground that these were computer generated documents. The defendants argued that the contents of a computer-generated document can only be proved either by producing a certificate as required by section 90A (2) or calling the maker. In support of this proposition, reliance was placed on the decision of the Court of Appeal in Gnanasegaran v. PP [1997] 4 CLJ 6; [1997] 3 MLJ 1. The defendants argued that as no certificate was tendered, the plaintiff’s invoices and accounts were inadmissible. [18] In response, the plaintiff argued that section 90A does not apply to interlocutory applications like summary judgment applications which are decided by affidavit evidence. In support of this proposition, the plaintiff relied on Order 41 Rule 5 (2) of the ROC which permits an affidavit to contain hearsay evidence, and section 2 of the Act provides that the provisions of the Act do not apply to affidavit evidence. … [22] In my view, even if section 90A does not apply to Order 14 applications, it is clear that where a litigant wish to rely on the contents of a computer-generated document it is necessary to establish that it is safe to rely on the document by adducing evidence as to the computer’s reliability. In the instant appeal, there is no such evidence. [23] There is another defect. The plaintiff’s affidavit in support was affirmed by one Peng Gai Hock, a director in the company. There is no averment in his affidavit that the invoices and statements of account are computer generated documents produced in the course of the ordinary use of the office computer that generated them. [24] For the reasons given, I agree with the defendants’ submission that the invoices and statements of account were inadmissible and should not have being taken into account. Bereft of the invoices and statements of account there is no evidence to show the amount owing to the plaintiff.”. [36] The Appellant had the full opportunity at the full trial “to repair all the defects” in its claims against the Respondents. The documents that raised serious allegations were issues to be tried. Hence, the learned SCj had done her duty as the trial judge in examining the documents. [37] Thus, the only convincing evidence pertaining to the statues of the Letter of Guarantee that is an important document to bind the Second Respondent to pay the Appellant must based on the evidence before the trial judge that is the learned SCj. [38] The learned counsel for the Appellant submitted the following points in his appeal to this Court: (a) the Letter of Guarantee and Indemnity dated 2-1-2016 (hereinafter referred to as “Letter of Guarantee”) executed by the 2"d Respondent in favour of the Appellant where the 2nd Respondent had guaranteed to indemnify the Appellant against any outstanding sum due and payable by the 1st Respondent to the Appellant. (b) the learned Sessions Court Judge erred in fact in deciding that the Letter of Guarantee was unrelated to the business of the 1st Respondent. (c) further, the second Respondent alleged that at the material time when he executed the Letter of Guarantee, it was a blank form. The 2nd Respondent alleged that the Appellant had inserted the 1*t Respondent’s company, namely Marina Machinery Trading, without his knowledge and consent. (d) by referring to the Letter of Guarantee together with the attached photocopy identity card of the respective Respondents, it can clearly be seen that the company stamp of the 1st Respondent was affixed on the photocopy identity card and on the Letter of Guarantee. Further, the Respondents had also placed their signature on the documents near the company stamp or on top of the company stamp. (e) all this circumstantial evidence was tally with the terms of the Letter of Guarantee which states that this guarantee was given to the Appellant in consideration of the Appellant agreeing to supply goods and give credit to the 1st Respondent. (f) it is also trite that, in determining the intention of the parties, the words use in a contract should be given their natural and ordinary meaning. In this Letter of Guarantee, it is clear from the background of the case before me that the contracting parties involved in a commercial dealing under the Letter of Guarantee. Therefore, the interpretation of the words in the Letter of Guarantee has to be interpreted according to business common sense and must also meet the reasonable expectation of a sensible businessman. (g) the only plausible reason for the Respondents to sign this Letter of Guarantee in 2016 was because the 1st Respondent had owed a substantial sum of money to the Appellant since 2015 and there were still dealings between the parties at the material time. (h) there was no reason for the Appellant to request a guarantee from the company of Marina Machinery Trading Sdn Bhd as there was no ongoing transaction and there was no outstanding sum due and payable by Marina Machinery Trading Sdn Bhd at the material time. (i) as regard to the clauses in the Letter of Guarantee, the Appellant submits that by signing the Letter of Guarantee, the 2nd Respondent and the Appellant were therefore strictly bound by the terms of the Letter of Guarantee. (j) the Appellant submits that the clauses in the Letter of Guarantee are beyond clear, to which it is a personal guarantee. Hence, it is irrelevant even if the 2nd Respondent did not hold any position in the 1st Respondent. (k) the 1st Respondent had failed to perform all its obligations under the Letter of Guarantee, the 2nd Respondent, being the guarantor and principal debtor is therefore personally liable to pay the outstanding sum to the Appellant. (l) the learned Sessions Court Judge erred in deciding that the Appellant failed to produce original copy of the Letter of Guarantee and failed to call the maker of the Letter of Guarantee to testify. The Appellant believe that the Sessions Court Judge adopted the Respondents’ contention that the Letter of Guarantee should not be admitted as evidence. (m) that photocopy of the original Letter of Guarantee should be admitted as secondary evidence pursuant to section 65 of the Evidence Act 1950. It was confirmed by the Appellant’s witness that the Appellant did not have the original Letter of Guarantee and therefore we submit that the photocopy of the Letter of Guarantee is admissible as secondary evidence. (n) that the stamp certificate showing the date of the Letter of Guarantee was included as part of the trial documents, which can be seen at Enclosure 5, page 576 of the Record of Appeal. (o) the Learned Sessions Court erred in deciding that the Letter of Guarantee and Indemnity is a guarantee given by Marina Machines Trading Sdn Bhd and the guarantee does not concern the business of the 1st Respondent. This is in essence the defence raised by the Respondents as can be seen from paragraph 6 of the Statement of Defence. (p) it was the 2nd Respondent’s own admission that Marina Machinery Trading Sdn Bhd is not his business, what he owned was Marina Marketing Sdn Bhd. (q) the learned judge erred in deciding that the Letter of Guarantee and Indemnity was unrelated to the business of the 2nd Respondent. [39] The learned counsel for the Appellant cited the authority of cases, namely – • Afieco Manufacturing Sdn Bhd v. Yu Kheng Lai [2014) MLJU 619. • Orang Kaya Menteri Paduka Wan Ahmad Isa Shukri Bin Wan Rashid v. Kwong Yik Bank Berhad [1989] 3 MLJ 155. • MBf Insurans Sdn Bhd v. Lembaga Penyatuan & Pemulihan Tanah Persekutuan (FELCRA) [2008] 2 MLJ 398. • Macronet Sdn Bhd v. RHB Bank Sdn Bhd [2002] 3 MLJ 11. • Dexon Electrical Engineering Sdn Bhd v. Chin Pooi Yee (Trading as a Sole Proprietor under the name of AA Flexi Trading) & Anor [2021) MLJU 2241. • Andrew Lee Siew Ling v. United Overseas Bank (M) Bhd [2013] 1 MLJ 449, at [23]. [40] In the written submission by the learned counsel for the Respondents, the following points pertaining to the Letter of Guarantee are as follows: • the Appellant alleged that the Appellant’s claim against 2nd Respondent was for indemnity pursuant to the Letter of Guarantee and Indemnity dated 2.1.2016 executed by the 2nd Respondent and that the Respondents humbly refer this Honourable Court to page 7 of the Rekod Rayuan, Jilid 3, Bahagian C, showing the SSM Search of Marina Machinery Trading which has expressly stated that Marina Machinery is a sole proprietorship and therefore, the Respondents further submit that the Appellant has mistakenly referred Marina Machinery Trading as Marina Machinery Trading Sdn Bhd. • in addition, the Respondents’ submission is that the Appellant has failed to consider the facts and background of the parties judge i.e. the guarantor is the director of the company, before the judge can come to the decision that the letter of guarantee is to be executed against the Defendant in the cited case in which the facts of Mieco Manufacturing Sdn Bhd V Yu Kheng Lai [2014] MLJU 629. • the Respondents further refer this Honourable Court to Section 8, Registration of Business Act 1956 that, unless the person is registered/recorded in the register of SSM being the associates to the sole proprietorship, where in the event he is not recorded, he cannot enter into any valid contract on behalf of the sole proprietorship with a 3rd Party. • therefore, it is the Respondents’ contention that 2nd Respondent is not the owner and/or co-owner and/or registered proprietor and/or holding any position at the business of Marina Machinery Trading in which it has been stated that Marina Machinery Trading is a sole proprietorship and in furtherance, a valid contract i.e. the Letter of Guarantee and Indemnity cannot be entered by the 2nd Respondent in his personal capacity for and on behalf of Marina Machinery Trading. • in addition, the Respondents verily believe that if the Letter of Guarantee and Indemnity was indeed being executed by the Respondents (which the the Respondents denied), this letter cannot be enforced upon the parties as the 2nd Respondent has no capacity to enter into the contract, thus, the letter is void ab initio, and therefore, null and void, and of no effect. [41] For the issue on the Letter of Guarantee, this Court refer to the case of Koh Siak Poo v. Perkayuan Oks Sdn Bhd & Ors [1989] 1LNS 194 which was held – “It is clear that the action by the appellant was to enforce the terms of the deed and the letter of guarantee. It was a claim based upon the respondents’ contractual obligations arising from the deed and the letter of guarantee which are, as seen earlier, couched in words which are clear and unambiguous.”. [42] Where the written contracts are clear and unambiguous the court should not go behind the written terms of the contract to introduce or add new terms to it. See also Tindok Besar Estate Sdn Bhd v. Tinjar Co [1979] 1 LNS 119. The respondents did not challenge the validity of the contract on the ground of fraud or want or failure of consideration. What they sought to do was to attempt to establish that when the demand for payment was made to them the appellant had made some fraudulent misrepresentation. In a situation like this the duty of the court is confined to the construction of the written documents and extrinsic evidence is not admissible by virtue of ss. 91 and 92 of the Evidence Act 1950. [43] In this appeal, from the beginning the Appellant averred that the tax invoices cum delivery order and the Letter of Guarantee should be admitted as evidence. These pieces of evidences were undisputed by the Respondents and further the Respondents had referred to these documents during the trial (when crossing the Appellant’s witness). Therefore, based on the case of Jaafar bin Shaari v. Tan Lip Eng & Anor itself [1997] 3 MLJ 693, the tax invoices cum delivery order and the Letter of Guarantee should be admissible as evidence to demonstrate the Appellant’s claim against the Respondents. [44] The Appellant had referred and cited the case of Andrew Lee Siew Ling v. United Overseas Bank (M) Bhd [2013] 1 CLJ 24, the Federal Court held that – “[23] It is our considered view that in the present case the appellant, being a person who has given a guarantee and more importantly an indemnity, is primarily liable for losses which the principal borrower could not have been made liable. His liability is not dependent or secondary to the liability of the principal borrower. He is a principal debtor himself. The liability under a contract of indemnity does not depend on whether the principal debt is enforceable. It has no reference in law to the obligation of any third person. In essence, the liability of the person who has given an indemnity can be more extensive than that of the liability of the principal borrower. (See the cases of Yeoman Credit Ltd v. Latter & Anor [1961] 2 All ER 294 and Chung Khiaw Bank Ltd v. Soi Huan & Ors [1985] 1 LNS 71).”. [45] The factual fact in this dispute between the Appellant and the Respondents is about “so called sale of goods” from the Appellant to 1st Respondent. The goods were not sold and delivered to the 1st Respondent. Since there are no proof that the sale of goods to the 1st Respondent, so the question arises whether the 1st Respondent owed the debt? Whether there is outstanding payment to the Appellant? Next, since the 1st Respondent defaulted in the payment therefore the Appellant was using the Letter of Guarantee to hold that the 2nd Respondent is liable for his brother’s debt and the 2nd Respondent must indemnify the Appellant. [46] In the full trial, the learned SCj had satisfied the facts that there are no goods dold to the 1st Defendant and therefore there is no outstanding payment by the 1st Respondent to the Appellant. The learned SCj also found that after examining the Letter of Guarantee, this important document did not refer to the 2nd Respondent as the guarantor. Be that as it may, none of the points raised by the Appellant had stated abut the difference between these companies’ names – • Marina Machinery Trading that is belong to the 1st Respondent • Marina Machinery Trading Sdn Bhd • Marina Marketing Sdn Bhd that is belong to the 2nd Respondent Conclusion [47] For the reasons given above, I see no good reason to interfere with the learned SCj’s finding. [48] In the result, I dismiss the appeal with costs Dated: 19 February 2023. RoziBainon ( ROZI BINTI BAINON ) Judicial Commissioner High Court NCvC12 Shah Alam The Counsels: For the Appellant/Plaintiff: Wong Hui Hong Tetuan Y.Y. Ho & Lee, Kuala Lumpur For the Respondent/Defendants: Ooi She Yi Tetuan Ooi’s Chambers, Kuala Lumpur