GALVACO INDUSTRIES SDN BHD NEU ESTATES SDN. BHD.

GALVACO INDUSTRIES SDN BHD NEU ESTATES SDN. BHD.

The retention-of-title clauses in the plaintiff's progress claims and invoices, viewed against s25 SOGA and evidence, meant title to the unpaid guardrails remained with the plaintiff until full payment; because the guardrails were supplied and installed but unpaid (RM384,149.53), plaintiff retained ownership and was entitled to enter the project site and remove guardrails equivalent to that unpaid sum, subject to conditions (no damage, removal in presence of respondent, plaintiff bears removal costs).

Citation
BA-12BNCvC-21-08/2021 (Mahkamah Tinggi)
Parties
Appellant/plaintiff: Galvaco Industries Sdn Bhd; 1st Defendant (original Main Contractor): Pembinaan Prima Indah Sdn. Bhd.; 2nd Defendant/respondent: Neu Estate Sdn. Bhd.; 3rd Defendant: Cekal Unggul Sdn. Bhd.
Court
High Court
Jurisdiction
Malaysia
Judgment Date
1 June 2022
Case Number
BA-12BNCvC-21-08/2021 (Mahkamah Tinggi)
Procedural Posture
Civil Appeal / High Court Appeal From Sessions Court Judgment After Full Trial
Outcome
Appeal allowed in part
Legal Topics
Retention of Title (romalpa Clause), Section 71 Contracts Act 1950, Section 25 Sales of Goods Act 1957, Appellate Interference With Findings of Fact, Removal of Fixtures as Remedy
Source Language
Malay/English
Contract Law Sales of Goods Restitution/unjust Enrichment Civil Procedure Retention of Title (romalpa Clause) Section 71 Contracts Act 1950 Section 25 Sales of Goods Act 1957 Appellate Interference With Findings of Fact +1 more

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Parties

Galvaco Industries Sdn Bhd

Appellant/plaintiff

Pembinaan Prima Indah Sdn. Bhd.

1st Defendant (original Main Contractor)

Neu Estate Sdn. Bhd.

2nd Defendant/respondent

Cekal Unggul Sdn. Bhd.

3rd Defendant

Procedural Posture

Civil Appeal / High Court Appeal From Sessions Court Judgment After Full Trial

Legal Issues

  1. 1 Whether plaintiff may obtain restitution under section 71 Contracts Act 1950 without privity of contract with the defendant
  2. 2 Whether retention of title clauses in invoices/progress claims under s25 SOGA prevent transfer of ownership such that plaintiff retains title until full payment
  3. 3 Whether plaintiff may enter site and remove installed guardrails equivalent to unpaid sum without causing damage

Ratio Decidendi

The retention-of-title clauses in the plaintiff's progress claims and invoices, viewed against s25 SOGA and evidence, meant title to the unpaid guardrails remained with the plaintiff until full payment; because the guardrails were supplied and installed but unpaid (RM384,149.53), plaintiff retained ownership and was entitled to enter the project site and remove guardrails equivalent to that unpaid sum, subject to conditions (no damage, removal in presence of respondent, plaintiff bears removal costs).

Court Disposition

Appeal allowed in part

Orders

  • Appellant allowed to enter Project Site and remove and take possession of guardrails and materials to the value of RM384,149.53 (approximately 2630 meters) as specified, without causing damage
  • Respondent and its agents, employees or servants shall not interfere or obstruct the removal