There was no cross-examination of DW4 on his testimony that PW1 had informed him the delivery of the goods was on a consignment basis when the Appellant contended there was. S/N foavd8XbEiurnM3PNzomA This Court’s assessment [6] The most pertinent question in this appeal was whether the Respondent had ordered the goods – 186 sets to the value of RM744,000. This Court had scrutinised the Appeal Records and found that the Appellant had not proven on a balance of probabilities that the Respondent had ordered the goods as per the Appellant’s contention. [7] The Respondent carries out a business selling sundry and daily necessities through its outlets for the FELDA settlers. The Appellant was its supplier for gas tanks/canisters and a few other sundry items. The order of business in terms of documentations of the supplies and payments were ‘surat perlantikan’ by the Respondent of the Appellant to supply the particular items. The orders communicated by the Respondent to the Appellant through cover letters and emails were vide ‘nota pesanan’ that confirmed the orders for the supplies required by the Respondent. The Appellant subsequently sent invoices with the items supplied and delivered and the Respondent processed payments on these complete set of documentations. [8] There is no evidence to show that the Respondent had ordered the goods in question. First of all, there was an anomaly as Korean gold accessories were not categorised as sundries and daily necessities for the FELDA settlers. There were also no forms of documentation from the Respondent in their usual business norm for the goods. This Court views that the testimony for the Plaintiff that the Respondent had ordered the goods verbally did not tip the balance of probabilities in its favour. It had only amounted to just a contention. This is because documentations were required to enable payments to be made by the Respondent. S/N foavd8XbEiurnM3PNzomA [9] The Respondent’s witnesses testified that they were informed when the goods were delivered that the goods were on a consignment basis. The Appellant’s witnesses had earlier denied this but did not adduce evidence that the Respondent had desired for the supply of the said goods as per the normal course of their supplier-retailer relationship. This Court considered that there was no cross-examination on the testimony by the Respondent’s witnesses to challenge that it was on the basis of consignment that the Respondent had then accepted the goods. [10] This Court finds that the argument of the Appellant that a contract was formed by its invoice issued to the Respondent and also the delivery notes of the goods, misplaced and mistaken. This Court is not persuaded by the Appellant’s submission on the application of ss91 and 92 Evidence Act 1950. In this case, as there was no written contract or any other form of written document to show the order placed by the Respondent and the Appellant had supplied accordingly, the Session Court was correct to consider the oral evidence to make a finding of the parties’ intention and agreement. [11] As such, this Court agrees with the finding of the Session Court that on a balance of probabilities, the goods were not ordered by the Respondent but were delivered by the Appellant on a consignment basis. [12] This Court reiterates that the burden was on the Appellant to prove that the Respondent had ordered the goods outright as per the other items, and not on a consignment basis, which the Appellant had failed to discharge pursuant to Section101, 102 and 103 of the Evidence Act 1950. S/N foavd8XbEiurnM3PNzomA [13] Therefore, the Appellant’s argument that the failure by the Respondent to respond to its letter of demand weakened the probative value of the Respondent’s defence, is secondary. The Appellant first have to prove its case on a balance of probabilities before the burden shifts to the Respondent. [14] In fact, there were a few questionable issues on the Appellant’s invoice particularly the accuracy of the goods delivered – it was stated as 186 sets but only 136 sets were delivered. There was also a stamp that the payment for the goods ought to have been factored to Qiblatin though this was later clarified. Thus, this Court finds that the invoice per se cannot be concrete proof to conclude that a contract was entered into between the parties for the goods. [15] So, this also goes to answer the first point of submission by the Appellant – that it had in fact locus standi to pursue for the payment from the Respondent. This Court finds that the Appellant does have locus to recover the amount due to it for the goods supplied but for those that had been sold by the Respondent as they were delivered to the Respondent on a consignment basis. In any event, the locus standi issue does not change the fact that the Respondent had not ordered for the supply of the said goods from the Appellant. Any error by the Session Court on this point does not change the outcome. The claim of the Appellant against the Respondent must fail. [16] This Court has also considered the other grounds in the Appellant’s Memorandum of Appeal and found them to be without merits. There will be no appellate intervention in this instant as the ‘plainly wrong test’ is not fulfilled – see Federal Court’s decision in Ng Hoo Kui & Anor v Wendy S/N foavd8XbEiurnM3PNzomA Tan Lee Peng, Administration of the Estates of Tan Ewe Kwang, Deceased & Ors [2020] 10 CLJ 1. [17] There was no error by the Session Court in its reasoning and appreciation of evidence, fortified with its advantage of having had the opportunity to visually assess all witnesses for the parties – as per the ratio in the Court of Appeal’s decision of Aik Ming (M) Sdn Bhd & Ors v Chang Ching Chuen & Ors and Another Case [1995] 3 CLJ 639 770. Conclusion [18] This appeal is dismissed with costs of RM10,000. The decision of the Session Court is affirmed. DATED 13 JUNE 2023 ROZ MAWAR ROZAIN JUDICIAL COMMISSIONER HIGH COURT IN MALAYA KUALA LUMPUR For the Appellant: Jennifer Chandran T/n Vaasan Chan & Chandran For the Respondent: Doshi Jyotsana TT T/n Abdullah & Zainudin S/N foavd8XbEiurnM3PNzomA