Proventus Bina Sdn Bhd v Fortis Star Sdn Bhd (JA-12BNCC-4-01/2025)

This is an appeal by the Appellant (“Defendant”) against the decision of the Sessions Court delivered on 24 September 2024, after the conclusion of the trial, whereby the Court allowed the Respondent’s (“Plaintiff”) claim and ordered as follows—

judgment in the sum of RM401,582.00;

interest at the rate of 1.5% per month pursuant to section 11 of the Civil Law Act 1956 on the sum of RM10,213.17 being the amount accrued;

interest at the rate of 5% per month on the judgment sum; and

costs of RM2,000.00. For ease of reference, the parties are referred to as they were before the Sessions Court.

In arriving at the decision, this Court referred to the cause papers, the parties' written submissions, the bundles of authorities and oral submissions heard on 3 September 2025. This is the Court’s decision.

The Plaintiff’s claim against the Defendant was for the balance of payment due for goods delivered to the Defendant, together with late payment interest amounting to RM10,213.17 calculated at the rate of 1.5% per month, as at 11 April 2023. From the record of appeal, it is observed that the goods in question were concrete supplied by the Plaintiff to the Defendant.

The Defendant denied the Plaintiff’s claim, contending that all goods delivered had been duly paid for the Defendant further denied having agreed to pay late payment interest at the rate of 1.5% per month.

At the outset, this Court is mindful that, in exercising its appellate jurisdiction, it should be slow to interfere with the decision of the trial court unless it is shown that the trial court is plainly wrong when arriving at the decision under appeal [see: UEM Group Bhd v. Genisys Integrated Engineers Pte Ltd & Anor [2010] 9 CLJ 785; Azman Mahmood & Anor v. SJ Securities Sdn Bhd [2012] 6 CLJ 573; MMC Oil & Gas Engineering Sdn Bhd v. Tan Bock Kwee & Sons Sdn Bhd [2016] 4 CLJ 665].

The appellate function was restated in the recent Court of Appeal case of Ahmad Rubil Ahmad & Ors v. Minda Muhibah Sdn Bhd & Anor [2025] CLJU 1798, in reference to Civil and Criminal Appeals in Malaysia, 4th Edition, as follows— “[24] In his book, Civil and Criminal Appeals in Malaysia,4th Edition, learned author Tan Kay Heng has summarised the duty of the appellate court as follows— [6.013] However, the appellate court is under a duty to intervene on the finding of fact of the trial court where the trial court has so fundamentally misdirected itself that one may safely say that no reasonable court which had properly directed itself and asked the correct questions would have arrived at the same conclusion, which means an appellate court would carry out an examination of the reasoning in respect of the finding of fact in the light of all the evidence adduced before the trial court. An appellate court should not hesitate to disturb the findings of the trial court if there were failure on the part of the trial court to appreciate the issues and/or evidence, to properly and adequately evaluate the evidence, to make the proper findings and inferences or deductions, to give reasons, and or to apply the correct law to the facts”.

The Defendant’s complaint in this appeal is that the Sessions Court erred in accepting inadmissible documents categorised in Part C in support of the Plaintiff’s claim. The Defendant further denied having received such documents.

Based on the grounds of judgment, the invoices, statement of account and statement of calculation of interest were in Part C. The Defendant objected to the admission of these documents, contending that the Plaintiff’s failure to produce a certificate pursuant to section 90A of the Evidence Act 1950 [Act 56] was fatal.

Failure to produce a certificate pursuant to subsection 90A(2) of

Section 90A of Act 56 provides as follows—

In any criminal or civil proceeding a document produced by a computer, or a statement contained in such document, shall be admissible as evidence of any fact stated therein if the document was produced by the computer in the course of its ordinary use, whether or not the person tendering the same is the maker of such document or statement.

For the purposes of this section it may be proved that a document was produced by a computer in the course of its ordinary use by tendering to the court a certificate signed by a person who either before or after the production of the document by the computer is responsible for the management of the operation of that computer, or for the conduct of the activities for which that computer was used.

(a) It shall be sufficient, in a certificate given under subsection

(2), for a matter to be stated to the best of the knowledge and belief of the person stating it.

A certificate given under subsection (2) shall be admissible in evidence as prima facie proof of all matters stated in it without proof of signature of the person who gave the certificate.

Where a certificate is given under subsection (2), it shall be presumed that the computer referred to in the certificate was in good working order and was operating properly in all respects throughout the material part of the period during which the document was produced.

A document shall be deemed to have been produced by a computer whether it was produced by it directly or by means of any appropriate equipment, and whether or not there was any direct or indirect human intervention.

A document produced by a computer, or a statement contained in such document, shall be admissible in evidence whether or not it was produced by the computer after the commencement of the criminal or civil proceeding or after the commencement of any investigation or inquiry, in relation to the criminal or civil proceeding or such investigation or inquiry, and any document so produced by a computer shall be deemed to be produced by the computer in the course of its ordinary use.

Notwithstanding anything contained in this section, a document produced by a computer, or a statement contained in such document, shall not be admissible in evidence in any criminal proceeding, where it is given in evidence by or on behalf of the person who is charged with an offence in such proceeding the person so charged with the offence being a person who was—

responsible for the management of the operation of that computer or for the conduct of the activities for which that computer was used; or

in any manner or to any extent involved, directly or indirectly, in the production of the document by the computer.

The principle on whether it is mandatory to produce the certificate under Section 90A of Act 56 has been settled, as explained by the Federal Court in Ahmad Najib Aris v. PP [2009] 2 CLJ 800 and Court of Appeal in Hanafi Mat Hassan v. PP [2006] 3 CLJ 269.

In Ahmad Najib Aris, the Federal Court explained— [31] I am of the view that a certificate under s. 90A(2) of the Act is not the only method to prove that a document was produced by a computer "in the course of its ordinary use". On this point I would first like to cite the case of Gnanasegaran Pararajasingam v. PP [1997] 4 CLJ 6 where Shaik Daud, JCA said at pp. 17-18— On reading through section 90A of the Act, we are unable to agree with the construction placed by learned counsel. First and foremost, section 90A which had seven subsections should not be read disjointedly. They should be read together as they form one whole provision for the admissibility of documents produced by computers. As stated earlier, section 90A was added to the Act in 1993 in order to provide for the admission of computer-produced documents and statements as in this case. On our reading of this section, we find that under subsection

(1), the law allows the production of such computer-generated documents or statements if there is evidence, firstly, that they were produced by a computer. Secondly, it is necessary also to prove that the computer is in the course of its ordinary use. In our view, there are two ways of proving this. One way is that it 'may' be proved by the production of the certificate as required by subsection (2). Thus, subsection (2) is permissive and not mandatory. This can also be seen in subsection (4) which begins with the words 'Where a certificate is given under sub-section

(2). These words show that a certificate is not required to be produced in every case”. [see also: Petroliam Nasional Bhd & Ors v Khoo Nee Kiong [2003] 4 MLJ 216; Telekom Malaysia Bhd v. KLK Electronic Sdn Bhd [2019] 1 LNS 522].

In Hanafi Mat Hassan, the Court of Appeal explained— "[18] A careful perusal of section 90A(1) reveals that in order for a document produced by a computer to be admitted in evidence it must have been produced by the computer in the course of its ordinary use. It is therefore a condition precedent to be established before such a document can be admitted in evidence under section 90A(1). The manner of establishing this condition has been prescribed. It can be proved by tendering in evidence a certificate as stipulated by section 90A(2) read with section 96A(3). Once the certificate is tendered in evidence the presumption contained in section 90A(4) is activated to establish that the computer referred to in the certificate was in good working order and was operating properly in all respects throughout the material part of the period during which the document was produced. Section 90A(4) must therefore be given its full effect as it has a significant role to play in the interpretation and application of section 90A. Ordinarily a certificate under section 90A(2) must be tendered in evidence in order to rely on the provisions of section 90A(3) and (4). However, the use of the words "may be proved" in s. 90A(2) indicates that the tendering of a certificate is not a mandatory requirement in all cases. In PP v. Chia Leong Foo [2000] 4 CLJ 649 a plethora of authorities was referred to in ruling that facts to be presumed can, instead, be proved by other admissible evidence which is available. Thus the use of the certificate can be substituted with oral evidence as demonstrated in R v. Shepherd [1993] 1 All ER 225 in dealing with a provision of law similar to s. 90A. Needless to say, such oral evidence must have the same effect as in the case of the use of a certificate. It follows that where oral evidence is adduced to establish the requirements of s. 90A(1)in lieu of the certificate the presumptions attached to it, in particular, the matters presumed under s. 90A(4) must also be proved by oral evidence. In commenting on the nature of the evidence required to discharge the burden in such an event Lord Griffiths said in R v. Shepherd [1993] 1 All ER 225 at p 231— The nature of the evidence to discharge the burden of showing that there has been no improper use of the computer and that it was operating properly will inevitably vary from case to case. The evidence must be tailored to suit the needs of the case. I suspect that it will very rarely be necessary to call an expert and that in the vast majority of cases it will be possible to discharge the burden by calling a witness who is familiar with the operation of the computer in the sense of knowing what the computer is required to do and who can say that it is doing it properly. It must be added that the condition precedent in s. 90A(1) coupled with the stipulation on the manner of its proof makes it clear in unmistakable terms that a document made admissible by the section is only one that was produced by a computer in the ordinary course of its use; and inapplicable to one that was not so produced." [emphasis added]

In short, the case of Ahmad Najib Aris, explains that subsection 90A(1) of Act 56 deals with the admissibility of a document that was produced by a computer in the course of its ordinary use and Hanafi Mat Hassan explains on the admissibility of a document which was not produced by a computer in the course of its ordinary use and is only deemed to be so, pursuant to subsection 90A of Act 56.

From the grounds of judgment, the Sessions Court Judge, upon considering the evidence of the Plaintiff’s witness SD1 (the account manager), was satisfied with SD1’s explanation that the documents were produced by the in-house computer in the course of the Plaintiff’s ordinary business. Accordingly, the documents were marked as P1(a)–(p) (the 16 invoices), P2, P3(a) and P3(b) (the statements of account), and P4 (the statement of calculation of interest).

This Court finds no reason to interfere with the Sessions Court’s finding on the admissibility of the documents, as the Judge had the advantage of assessing both the evidence and the witness during the trial.

Defendant’s denial of receipt of documents

The Defendant denied receiving the invoices, the statement of account and the statement of calculation of interest. However, based on the written submissions and the appeal record, there is no evidence to support the Defendant's assertion that it had not received or rejected the goods.

Upon perusing the Delivery Order in Enclosures 5, 6 and 7, this Court observed that the Delivery Order contained two types of acknowledgement of receipt: in some, there is an initial with two affixed Defendant company stamp; in others, an initial with a single affixed Defendant’s company stamp. Notably, only 16 invoices linked to these delivery orders were denied by the Defendant. Regarding other Delivery Orders, bearing only an initial and a single company stamp, the Defendant did not object and made payment in accordance with the invoices.

The legal position on acceptance and rejection of goods is provided in section 40 of the Sale of Goods Act 1957 (Revised 1989) [Act 382]— “The buyer is deemed to have accepted the goods when he intimates to the seller that he has received 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”.

In view of the foregoing facts and applying the principle in Boustead Trading (1985) Sdn. Bhd. v. Arab-Malaysian Merchant Bank Berhad [1995] 4 CLJ 283, the Defendant is estopped from denying its liability to pay the Plaintiff for goods delivered and received by them. The bare denial of the amount and late interest does not avail the Defendant.

On the issue of late payment interest, the Defendant denied having agreed to the 1.5% monthly rate. However, the Plaintiff’s invoices, which the Sessions Court accepted, clearly stipulated this term. Having received and acted upon similar invoices in the past without objection, and having made payments under such invoices, the Defendant is deemed to have accepted the contractual term. Accordingly, the Sessions Court was correct in awarding late payment interest as claimed.

For the foregoing reasons, this Court is satisfied that there is no manifest error in the Sessions Court decision that would warrant appellate intervention. The Defendant’s appeal is therefore dismissed with costs of RM6,000.00, subject to allocator. Dated : 30 September 2025 Dr. Noradura Binti Hamzah Judicial Commissioner High Court Civil 2 Johor Bahru Peguamcara : Perayu Tetuan Lee & Poh Partnership Peguamcara : Responden