Zone Nine Sdn. Bhd. (dahulunya dikenali sebagai GBH Ceramics Sdn. Bhd.) Kien Wai Plumbing Construction

WA-12BC-21-12/2022 Kand. 23 12/09/2024 15:27:05 IN THE HIGH COURT IN MALAYA AT KUALA LUMPUR IN THE FEDERAL TERRITORY OF KUALA LUMPUR, MALAYSIA CIVIL APPEAL NO.: WA-12BC-21-12/2022 BETWEEN ZONE NINE SDN BHD (Company No.: 197801001282 (38312-P)) (previously known as GBH Ceramics Sdn Bhd) ... APPELLANT AND KIEN WAI PLUMBING CONSTRUCTION (Registration No.: 002414300-H) ... RESPONDENT IN THE SESSIONS COURT AT KUALA LUMPUR IN THE FEDERAL TERRITORY OF KUALA LUMPUR, MALAYSIA CIVIL SUIT NO.: WA-B52C-22-05/2021 BETWEEN KIEN WAI PLUMBING CONSTRUCTION (Registration No.: 002414300-H) ... PLAINTIFF AND ZONE NINE SDN BHD (Company No.: 197801001282 (38312-P)) (previously known as GBH Ceramics Sdn Bhd) ... DEFENDANT S/N 9yLMFpE1REi4lxycjHvHSA **Note : Serial number will be used to verify the originality of this 1 document via eFILING portal GROUNDS OF JUDGMENT INTRODUCTION [1] This was an appeal by the Appellant, the seller of vitrified clay pipes for sewerage works for a housing project, against the decision of the learned Sessions Court Judge (‘SCJ’) on 5.12.2022 where she allowed the Respondent’s claim against the Appellant for the sum of RM313,246.50 with interest at the rate of 5% per annum from 5.12.2022 until the date of settlement and costs of RM5,000.00. [2] The Respondent alleged that, as the manufacturer of the clay pipes, the Appellant is liable for the defects in the goods supplied and for losses and damages in the sum of RM313,246.50, which was back charged by the main contractor from the Respondent’s contract. [3] After perusing the Record of Appeal (‘RoA’) and giving due consideration to the oral and written submissions of the parties, I had allowed the Appellant’s appeal. [4] The Respondent is dissatisfied with my decision, and I now provide my full grounds of judgment. [5] In the succeeding paragraphs, the parties shall be referred to as they were in the court below. S/N 9yLMFpE1REi4lxycjHvHSA **Note : Serial number will be used to verify the originality of this 2 document via eFILING portal BACKGROUND FACTS [6] The Plaintiff is a partnership carrying out the business of plumbing and contractor with a business address at No. 33-1, Jalan Manis 7, Taman Segar Cheras, 56100 Kuala Lumpur. [7] By the Letter of Appointment dated 19.8.2015 (‘LoA’), HSB B & C Construction Sdn. Bhd. (‘HSB’) appointed the Plaintiff as the sub- contractor for sewerage works for the project known as “Cadangan Pembangunan Perumahan Berstrata Yang Mengandungi 232 Unit (Fasa 1) & 208 Unit (Fasa 2) Di Atas PTD 21700 (Sebahagian Lot Asal PTD 209295) Fasa 4B4, Precint 1 (SP3) Bandar Seri Alam, Mukim Plentong, Daerah Johor Bahru, Johor Darul Takzim” (‘Project’) for the contract sum of RM1,009,230.80. [8] Item 1.3 of the description of the sewerage reticulation works in Appendix A of the LoA is to “Supply and lay vitrified clay pipes (VCP) of extra strength with flexible joints and approved rubber - ring to MS 1228 laid in trench including all bends, junction as sewer to invert all in accordance with drawing and shall comply with all authorities’ approval” (‘Work’). [9] The Defendant is a company registered in Malaysia and having its registered address at 29th Floor, Menara JKG, No. 282, Jalan Raja Laut, 50350 Kuala Lumpur. S/N 9yLMFpE1REi4lxycjHvHSA **Note : Serial number will be used to verify the originality of this 3 document via eFILING portal [10] The Defendant was previously known as GBH Ceramics Sdn Bhd. At the material time, the Defendant was carrying out the business of producing and trading ceramic pipes. [11] The Plaintiff had placed orders for vitrified clay pipes with rubber rings and vitrified clay bends and junctions all brand GBH Ceramics (‘Goods’) through Kinda Hardware Trading (KL) Sdn Bhd (‘Kinda’). [12] Kinda purchased the Goods from Danau Wira Sdn Bhd (‘Danau Wira’). [13] Danau Wira ordered the Goods from the Defendant. [14] Between 7.4.2015 to 9.11.2015, Goods in the total sum of RM360,268.79 were purchased for the Plaintiff to commence and complete the Work. [15] The Defendant issued 22 Delivery Orders (‘DO’) to Danau Wira for delivery of the Goods to Kinda. [16] The Plaintiff engaged Netspek Sdn. Bhd. (‘Netspek’) to do a CCTV Inspection Report (‘CCTV Report’) on the Project. Netspek issued the CCTV Report on 8.8.2017 wherein among the findings is that there are various circumferential cracks, circumferential fracture, longitudinal cracks and holes in the sewer at various position of the pipes which were supplied by the Defendant (‘Defects’). [17] As a result of the Defects, HSB incurred the following costs in rectifying the same: S/N 9yLMFpE1REi4lxycjHvHSA **Note : Serial number will be used to verify the originality of this 4 document via eFILING portal Water jetting works RM 11,900.00 CCTV works RM 58,007.00 Patching works RM218,250.00 Materials RM 22,664.00 Labour RM 2,425.50 TOTAL RM313,246.50 [18] On 31.7.2017, HSB back charged the Plaintiff the sum of RM313,246.50 from the contract sum. [19] The Plaintiff alleged that, as the manufacturer of the Goods, the Defendant is liable for the Defects and for the losses and damages in the sum of RM313,246.50. [20] Basically, the Defendant denied the Plaintiff’s claim on the main ground that it has no contractual relationship whatsoever with the Plaintiff. In particular, the Defendant asserted that it – (a) did not receive any orders from the Plaintiff or through Kinda; (b) has never dealt with the Plaintiff or Kinda during the period from April 2015 to November 2015; (c) has never sold and delivered the Goods or issued any DO or invoices for the sale and delivery of the Goods for the price of RM360,268.79 to the Plaintiff or to Kinda; S/N 9yLMFpE1REi4lxycjHvHSA **Note : Serial number will be used to verify the originality of this 5 document via eFILING portal (d) has never dealt with the Plaintiff or Kinda for the sale and delivery of the Goods to be used for the Work; (e) has never delivered the Goods to the project site for the Plaintiff or Kinda; (f) has not received any reports or complaints from any parties regarding any of the Defects; and (g) has never received any demands from the Plaintiff regarding the rectification costs of the Defects in the Goods. DECISION OF THE SESSIONS COURT [21] After a full trial, the SCJ decided that the Plaintiff has produced sufficient evidence to prove, on a balance of probabilities, its claim against the Defendant. The SCJ’s analysis and findings in paragraphs 14 - 20 of her Grounds of Judgment (‘GoJ’; there is an error in the numbering of the paragraphs in the GoJ starting from the paragraph after “[18]”, which should be numbered as “[19]” instead of “[17]”) are summarised as follows: (a) there is a contractual relationship between the Plaintiff and the Defendant. Kinda’s role is as a third party who assisted the Plaintiff in purchasing the Goods from the Defendant. The Goods were ordered by Kinda and delivered by the Defendant to the Plaintiff. In his evidence in court, Gan Lock Yong @ Gan Choon Hur, the Defendant’s Director (DW1) admitted that they had S/N 9yLMFpE1REi4lxycjHvHSA **Note : Serial number will be used to verify the originality of this 6 document via eFILING portal delivered the Goods to the Plaintiff. The Defendant did not deny that 22 DO were issued by the Defendant to the Plaintiff. The Goods were purchased for the Plaintiff’s use and benefit and the Plaintiff will pay for the same; (b) Danau Wira is the Defendant’s agent as the Defendant delivered the Goods to the Plaintiff on Danau Wira’s instruction; (c) the Plaintiff bought the Goods from the Defendant for a specific purpose and hence, pursuant to sub-s 16(1) of the Sale of Goods Act 1957 [Act 382], the Goods supplied must be reasonably fit for such purpose. Based on the CCTV Reports produced, it is apparent that the defects in the Goods meant that they could not be used and need to be rectified; (d) the Defendant merely denied that the Goods were not defective without providing any evidence as required under s 103 of the Evidence Act 1950 [Act 56] (‘EA 1950’) to prove that the Goods were not defective at the time when they were delivered to the Plaintiff. By applying the decision in David Chelliah v Monorail Malaysia Technology Sdn Bhd [2009] 3 CLJ 771, the failure to adduce such evidence warrants an inference that the defects to the Goods were caused by the Defendant’s negligence during the production process; and (e) the expenses incurred by the Plaintiff because of the defective Goods is reasonably foreseeable. S/N 9yLMFpE1REi4lxycjHvHSA **Note : Serial number will be used to verify the originality of this 7 document via eFILING portal THE MEMORANDUM OF APPEAL [22] The Memorandum of Appeal listed nine grounds of appeal in respect of the SCJ’s decision and this was followed with 14 grounds of appeal in the Supplemental Memorandum of Appeal after the GoJ was released. [23] Basically, the Defendant claimed that the SCJ had erred in law and/ or in fact in her analysis, findings and conclusions as stated in subparagraphs 21 (a) to (e) above. In addition, the SCJ is said to have erred when she allowed the Plaintiff’s claim based on a new cause of action which was not pleaded by the Plaintiff and was raised for the first time at the submission stage, namely that the Defendant as the manufacturer of the Goods has a duty of care to the Plaintiff and the Defendant had breached the said duty when it supplied defective goods to the Plaintiff. THE LEGAL PRINCIPLES [24] The learned counsel for the Defendant, Mr. Jeffry Wong cited the decision of the Federal Court in Gan Yook Chin & Anor v Lee Ing Chin & Ors [2004] 4 CLJ 309 for the central feature of appellate intervention, which is to determine whether the trial court had arrived at its finding correctly on the basis of the relevant law and established evidence. A decision by the trial court which was arrived at without judicial appreciation of the evidence may be set aside on appeal. In determining whether the trial judge’s appreciation of the evidence is S/N 9yLMFpE1REi4lxycjHvHSA **Note : Serial number will be used to verify the originality of this 8 document via eFILING portal sufficient or otherwise, the process of evaluation of the evidence by the trial judge i.e. the assessment of the evidence, the weight that was given to the evidence and the reasons for accepting or rejecting the whole or any part of the evidence, must be examined. [25] On his part, Mr. WS Teo, who represented the Plaintiff in this appeal, referred this Court to the case authority of Koh Siak Poo v. Sayang Plantation Bhd [2002] 1 CLJ 501 (CA) where at p 506, the speech of Lord Shaw of Dunfermline Clarke v Bristol Tramways [1919] SC (HL) 35 was quoted for the proposition that a trial judge has the benefit of seeing and hearing the witnesses, and unless he or she was plainly wrong, an appellate court would defer to the judgment of the trial judge. [26] Gan Yook Chin’s case was among the many case authorities discussed in Ng Hoo Kui & Anor v Wendy Tan Lee Peng (administratrix for the estate of Tan Ewe Kwang, deceased) & Ors [2020] 12 MLJ 67 (FC). It is settled law that an appellate court will not intervene with the decision of a trial court unless the trial court is shown to be plainly wrong in arriving at its decision. If, in arriving at the decision, it could not reasonably be explained or justified and the decision of the trial court is one which no reasonable judge could have reached, the decision is susceptible to appellate intervention. The plainly wrong test is not intended to be used by the appellate court as a means to substitute its own decision for that of the trial court on the facts [see pp 81 - 96 of the law report, especially paragraphs 62 - 78; see too, among others, Azman bin Mahmood & Anor v SJ Securities Sdn Bhd [2012] 6 MLJ 1 (FC, at paragraphs 24 and 25, p 12), Dream Property Sdn Bhd v Atlas Housing Sdn Bhd [2015] 2 MLJ 441 (FC, at paragraph 60, p S/N 9yLMFpE1REi4lxycjHvHSA **Note : Serial number will be used to verify the originality of this 9 document via eFILING portal 464) and MMC Oil & Gas Engineering Sdn Bhd v Tan Bock Kwee & Sons Sdn Bhd [2016] 2 MLJ 428 (CA, at paragraph 17, p 437)]. ANALYSIS & FINDINGS OF THE COURT 1st Issue: Whether the SCJ had erred in law and/ or in fact when she held that there is a contractual relationship between the Plaintiff and the Defendant 2nd Issue: Whether the SCJ had erred in law and/ or in fact when she allowed the Plaintiff’s claim based on a new cause of action which was not pleaded by the Plaintiff [27] Both Issues are inter-related and will be discussed together. [28] A perusal of the Amended Statement of Claim (‘SoC’) shows that the Plaintiff’s claim against the Defendant for the sum of RM313,246.50, which was back-charged by HSB to the Plaintiff as rectification costs for the defects in the Goods, is premised on the existence of a contractual relationship between the Plaintiff and the Defendant. [29] Nine issues were listed in the Plaintiff’s Issues To Be Tried (‘ITBT’) and two in the Defendant’s ITBT, none of which touched on issues which are commonly found in a cause of action premised on the tort of negligence. S/N 9yLMFpE1REi4lxycjHvHSA **Note : Serial number will be used to verify the originality of 10 this document via eFILING portal [30] However, in the Plaintiff’s Written Submission after the trial, it was contended, among others, that – (a) the Defendant “who is the manufacturer and supplier of the goods owe a duty of care to the Plaintiff”; (b) “In the absence of evidence to proof otherwise, the cracks and fractures in the vitrified clay pipes must be due to the negligence of the Defendant in manufacturing of the vitrified clay pipes”; (c) the Defendant “being a professional and renowned manufacturer of vitrified clay pipes a construction material has no doubt owe duty of care to any user of their vitrified clay pipes …”; (d) “… even if the Plaintiff has purchased the vitrified clay pipes from the Defendant through agents, the proximity of the relationship between the Plaintiff and the Defendant is so close that delivery of the vitrified clay pipes was not done by any third party but the Defendant is the one who delivered the vitrified clay pipes to the Plaintiff at the Plaintiffs project site”; (e) “… such damages suffered by the Plaintiff i.e. the costs and expenses of the patching work to be done to rectify the defects in the Defendant’s vitrified clay pipes … is reasonably foreseeable in that in the circumstances of the cracks and fractures in the vitrified clay pipes the Plaintiff had to incur costs and expenses to remedy such defects to handover the project. …”; and S/N 9yLMFpE1REi4lxycjHvHSA **Note : Serial number will be used to verify the originality of 11 this document via eFILING portal (f) the Defendant “ought to be liable to the losses suffered by the Plaintiff due to the duty of care owed to the Plaintiff and the Defendant has breached such duty of care by supplying the Plaintiff with the defective vitrified clay pipes and the losses suffered by the Plaintiff to rectify the defects are reasonably foreseeable”. [31] In the Defendant’s Written Submissions In Reply, it was, in my view, rightfully submitted that – (a) a claim for breach of duty of care is premised on the tort of negligence and in such cases the plaintiff must plead facts showing that the defendant owes a duty of care to the plaintiff, the defendant has breached the duty of care and as a result of such breach, the plaintiff suffered damage. However, none of these facts and the particulars of negligence were pleaded in the SoC and therefore, the Plaintiff cannot be permitted to submit on a case of negligence and a breach of duty of which is a complete departure from the pleadings; (b) the Plaintiffs and the Defendant’s ITBT do not raise any issues in relation to a breach of duty of care by the Defendant; and (c) the court cannot decide on matters which are not pleaded and among the cases cited are Projek Lebuhraya Utara-Selatan Sdn Bhd v. Kim Seng Enterprise (Kedah) Sdn Bhd [2013] 6 CLJ 958 (CA) and Aseambankers Malaysia Bhd & Ors v. Shencourt Sdn Bhd & Anor [2014] 2 CLJ 773 (CA). S/N 9yLMFpE1REi4lxycjHvHSA **Note : Serial number will be used to verify the originality of 12 this document via eFILING portal [32] Despite the Defendant urging the trial judge to disregard the Plaintiff’s submissions that the Defendant as a manufacturer and supplier of the Goods owes duty of care to the Plaintiff and had breached such duty, the SCJ found – (a) “Defendan di dalam kes di hadapan Mahkamah ini hanya menafikan bahawa barangan tersebut tidak rosak apabila dibekal dan dihantarserah kepada Plaintif. Namun demikian, tiada juga sebarang pembuktian yang diberikan oleh defendan untuk menunjukkan bahawa semasa barangan tersebut dihantarserah, ianya tidak rosak seperti yang dinyatakan di dalam laporan CCTV tersebut. Adalah merupakan tanggungjawab Defendan untuk memberikan pembuktian tersebut, yang mana ini adalah tidak dilakukan oleh Defendan, selaras dengan SEKSYEN 103 AKTA KETERANGAN 1950. Kegagalan tersebut mewajarkan satu inferens dibuat bahawa kerosakan tersebut diakibatkan oleh kecuaian dari pihak Defendan semasa proses pembikinan barangan tersebut. Ini adalah merupakan prinsip yang telah diputuskan di dalam kes DAVID CHELLIAH BS MONORAIL MALAYSIA TECHNOLOGY SDN BHD & ORS [2009] 3 CLJ 771 yang telah dirujuk dan diterimapakai di dalam kes di hadapan Mahkamah ini. …” (emphasis added); and (b) “Mahkamah ini berpendapat bahawa perbelanjaan yang terpaksa dikeluarkan oleh Plaintif akibat dari kerosakan yang dialami oleh Plaintif tersebut adalah sesuatu yang secara munasabahnya boleh dijangka. Ini adalah merupakan S/N 9yLMFpE1REi4lxycjHvHSA **Note : Serial number will be used to verify the originality of 13 this document via eFILING portal prinsip yang digarapkan di dalam kes SUNDRAM VEERIAH VS MAGNIFICENT DIAGRAPH SDN BHD [2011] 5 CLJ 821 yang telah dirujuk dan diterimapakai di dalam kes di hadapan Mahkamah ini. …” (emphasis added). [33] With respect, the SCJ was plainly wrong when she made an inference against the Defendant, by relying on the case of David Chelliah, that the defects in the Goods must have been due to the Defendant’s negligence in the process of manufacturing the same. [34] As submitted by the learned counsel for the Defendant, the issue in David Chelliah was how the safety wheel of a monorail could have dislodged and dropped on the appellant. Applying the legal principle of res ipsa loquitur, the court held that, in the absence of explanation by the respondents, negligence may be inferred. However, in the case before the SCJ, the issue as to whether the Goods are defective or not is not a res ipsa loquitur situation. [35] The SCJ also fell into error when she found that the expenses incurred by the Plaintiff as a result of the defective Goods are reasonably foreseeable by referring to Sundram Veeriah’s case. [36] The plaintiff’s case in Sundram Veeriah was grounded on breach of contract and breach of duty of care. However, the court rejected the plaintiff’s plea for breach of contract as the contract was for the purchase of the product in question which was precisely what the plaintiff did. The court nonetheless found that the defendant owed the plaintiff a duty of care to ensure that the product did not suffer from any S/N 9yLMFpE1REi4lxycjHvHSA **Note : Serial number will be used to verify the originality of 14 this document via eFILING portal latent defects and could have been used safely by the Plaintiff and ordered the defendant to pay the plaintiff general damages. In the course of analysing whether such a duty of case exists, the court considered whether the damage suffered by the plaintiff was reasonably foreseeable. [37] In the case before the SCJ, the Plaintiff’s claim against the Defendant was never premised on the tort of negligence. [38] Another glaring example of where the learned SCJ was plainly wrong is in her finding that “… Walaupun Defendan tidak mengetahui perhubungan di antara ejen-ejen pembeli Plaintif dengan Danau Wira Sdn Bhd, namun, dari keterangan yang ada, Danau Wira Sdn Bhd adalah merupakan ejen kepada Defendan kerana Defendan yang telah menghantar barangan tersebut di atas arahan Danau Wira Sdn Bhd.”. [39] In paragraph 7 of the SoC, the Plaintiff essentially pleaded that it had ordered the Goods through Kinda and Kinda in turn bought the Goods from the Defendant through Danau Wira. The Plaintiff did not order the Goods directly from the Defendant. Hence, as submitted by the Defendant, the only way for a valid contract to be constituted between the Plaintiff and the Defendant or for a legal relationship to exist between them is by finding that Kinda and Danau Wira were agents of the Plaintiff and the Defendant, respectively. If Kinda and Danau were such agents, there may be a contract for sale and delivery of the Goods between the Plaintiff and the Defendant, based on the principal-agent relationship. S/N 9yLMFpE1REi4lxycjHvHSA **Note : Serial number will be used to verify the originality of 15 this document via eFILING portal [40] Section 135 of the Contracts Act 1950 [Act 136] provides that: “Agent” and “principal” 135. An “agent” is a person employed to do any act for another or to represent another in dealings with third persons. The person for whom such act is done, or who is so represented, is called the “principal”. [41] However, the SoC contains no pleading that Kinda and Danau Wira are agents of the Plaintiff and the Defendant, respectively. Kinda was merely described as the “Plaintiff’s purchasing agent”. No evidence was led by the Plaintiff to show a principal-agent relationship between them. [42] Even if Kinda was the Plaintiff’s agent, the Plaintiff still has to prove that Danau Wira was the Defendant’s agent. In his testimony, DW1 said that the relationship between the Defendant and Danau Wira was merely of seller-buyer. Among the definitions in s 2 of the Sale of Goods Act 1957 [Act 382] (‘SGA 1957’) are the following: ““buyer” means a person who buys or agrees to buy goods; … “goods” means every kind of movable property other than actionable claims and money; and includes stock and shares, growing crops, grass, and things attached to or forming part S/N 9yLMFpE1REi4lxycjHvHSA **Note : Serial number will be used to verify the originality of 16 this document via eFILING portal of the land which are agreed to be severed before sale or under the contract of sale; … “seller” means a person who sells or agrees to sell goods;”. [43] The documentary evidence which supports DW1’s claim of a seller- buyer relationship between the Defendant and Danau Wira as opposed to a principal-agent relationship is the Defendant’s invoices which were issued to Danau Wira. In addition, 22 DO were issued to Danau Wira with the delivery address of Kinda. [44] The SCJ found that Danau Wira was the Defendant’s agent as the Defendant had delivered the Goods upon instructions from Danau Wira. With respect, this is erroneous. If Danau Wira was indeed the agent, it would be taking the Defendant’s instructions and not the other way round. It is not uncommon for a buyer, like Danau Wira, to instruct the seller, like the Defendant, to deliver goods to a specific third-party’s location other than the buyer’s location. [45] Even if Danau Wira had instructed the Defendant to deliver the Goods to Kinda or to the Plaintiff, this does not automatically make Danau Wira the agent of the Defendant and the Plaintiff a contracting party with the Defendant. [46] Danau Wira had also made payments for the price of the Goods to the Defendant. This is further proof that Danau Wira was a buyer of the S/N 9yLMFpE1REi4lxycjHvHSA **Note : Serial number will be used to verify the originality of 17 this document via eFILING portal Goods and not the Defendant’s agent as normally, agents earn by commissions. Even if the funds used by Danau Wira to pay the Defendant came from the Plaintiff, this again does not automatically make Danau Wira the Defendant’s agent and the Plaintiff a contracting party with the Defendant. [47] In the circumstances, this Court is constrained to find that there was insufficient judicial appreciation of the evidence, and this led the SJC to wrongfully conclude that Danau Wira is the Defendant’s agent. 3rd Issue: Whether the SCJ had erred in law and/ or in fact when she held that the Defendant is liable for the defects in the Goods [48] The SCJ found that “Plaintif di dalam kes ini telah membeli barangan tersebut dari Defendan untuk sebab-sebab yang spesifik, iaitu untuk dipasang di tapak projek. Justeru, barangan tersebut yang dibekalkan seharusnyalah bersesuaian atau bertepatan dengan tujuan ianya dibeli. Ini adalah selaras dengan SEKSYEN 16 (1) SALES OF GOODS ACT 1957. Dari laporan CCTV yang dikemukakan, adalah jelas dan nyata bahawa kerosakan-kerosakan tersebut menyebabkan ianya tidak boleh digunakan dan memerlukan untuk diperbetulkan.”. [49] Section 16 of the SGA 1957 provides for the implied condition as to quality or fitness whereby there is no implied warranty or condition as to the quality or fitness for any particular purpose of goods supplied under a contract of sale except in the situations as stipulated under paragraphs 16(1)(a) and (b) of the SGA 1957. A manufacturer can only S/N 9yLMFpE1REi4lxycjHvHSA **Note : Serial number will be used to verify the originality of 18 this document via eFILING portal be found liable for breach of implied warranty or condition under the said provision in a claim for defective goods if the manufacturer is the seller of the goods (see Pekat Teknologi Sdn Bhd v. Novaris PTY Ltd & Anor [2015] 1 CLJ 865). [50] However, being the manufacturer of the Goods does not automatically make the Defendant liable for defects in the Goods because the right to claim damages against the Defendant must be predicated on the Plaintiff having entered into a contract with the Defendant for the supply of the Goods. As outlined earlier, the Plaintiff has failed to establish this requirement. [51] Furthermore, s 42 of the SGA 1957 on “Acceptance” stipulates that: “42. 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.”. [52] The SCJ found that the Defendant has failed to prove that the Goods were not defective when the Goods were delivered to the Plaintiff whereas the burden is on the Plaintiff to prove that there were defects in the Goods at the time when the Goods were delivered to the Plaintiff. S/N 9yLMFpE1REi4lxycjHvHSA **Note : Serial number will be used to verify the originality of 19 this document via eFILING portal [53] The SCJ relied on the CCTV Report as proof of damage. However, two years had passed between the delivery of the Goods in 2015 and the CCTV Report in 2017. [54] The defects which the Plaintiff complained of were cracks. PW1 testified that he had inspected the Goods upon delivery in 2015 and found that the Goods were in good condition, not damaged and there were no cracks. [55] Based on the foregoing, a reasonable time has lapsed, and the Plaintiff has retained the Goods without intimating to the Defendant that the Plaintiff has rejected the Goods. The Plaintiff is therefore deemed to have accepted the Goods and the SJC had erred in her judgment in attaching liability on the Defendant. CONCLUSION [56] In sum, a scrutiny of the pleadings and ITBT clearly shows that the Plaintiff’s claim is predicated on there being a contract for the sale and delivery of the Goods between the Plaintiff and the Defendant. However, at the end of the trial, the Plaintiff’s submission revolved on negligence and that the Defendant as a manufacturer owes a duty of care to the Plaintiff and had breached that duty. This is clearly not the Plaintiff’s pleaded case. The Plaintiff being bound by its pleadings is precluded from raising a new cause of action of negligence for the first time in its submissions. S/N 9yLMFpE1REi4lxycjHvHSA **Note : Serial number will be used to verify the originality of 20 this document via eFILING portal [57] It is patent that the decision of the court below is fraught with errors due to a lack of judicial appreciation of the oral and documentary evidence adduced during the trial. [58] Based on the aforesaid considerations, the Defendant/ Appellant’s appeal was allowed with costs of RM10,000.00 here and below to be paid by the Plaintiff/ Respondent, subject to allocatur. Dated: 6 September 2024 (ALIZA SULAIMAN) Judge High Court in Malaya Kuala Lumpur Counsels/ Solicitors: For the Appellant: Jeffery Wong Yi Liang (Basirah Binti Karim with him) Messrs. Jeffery Wong, Noorul, Ho & Lim Advocates & Solicitors 731, Tingkat 7, Blok A2 Leisure Commerce Square No. 9, Jalan PJS 8/9 46150 Petaling Jaya Selangor S/N 9yLMFpE1REi4lxycjHvHSA **Note : Serial number will be used to verify the originality of 21 this document via eFILING portal For the Respondent: Teo Weng Seng Messrs. Weng Seng & Co Advocates & Solicitors No. 31, Jalan Wirawati 9 Taman Maluri 55100 Kuala Lumpur Cases, legislation and other sources referred to in the submissions by learned counsels and in the Grounds of Judgment: Cases: Aseambankers Malaysia Bhd & Ors v. Shencourt Sdn Bhd & Anor [2014] 2 CLJ 773 Azman bin Mahmood & Anor v SJ Securities Sdn Bhd [2012] 6 MLJ 1 (FC) CIMB Islamic Bank Berhad v. Ravichantiran Ganesan [2020] 1 LNS 415 Cold Chain Network (M) Sdn Bhd v Sime Darby Foods And Beverages Marketing Sdn Bhd [2014] 1 LNS 137 David Chelliah v Monorail Malaysia Technology Sdn Bhd [2009] 3 CLJ 771 Dream Property Sdn Bhd v Atlas Housing Sdn Bhd [2015] 2 MLJ 441 (FC) Dunfermline Clarke v Bristol Tramways [1919] SC (HL) 35 S/N 9yLMFpE1REi4lxycjHvHSA **Note : Serial number will be used to verify the originality of 22 this document via eFILING portal Emas Kiara Sdn Bhd v. Michael Joseph Monteiro [2018] 8 CLJ 17 Gan Yook Chin & Anor v Lee Ing Chin & Ors [2004] 4 CLJ 309 Guan Teik Sdn. Bhd. v. Haji Mohd Noor bin Haji Yaakob & Ors [2000] 4 CLJ 324; [2000] 4 MLJ 433 Hong Yik Trading v. Liziz Plantation Sdn Bhd [2017] 8 CLJ 491 Koh Siak Poo v. Sayang Plantation Bhd [2002] 1 CLJ 501 Lee Ing Chin & Ors v Gan Yook Chin & Anor [2003] 2 CLJ 19 Master Jaya Environmental Sdn Bhd v. Pentas Flora Sdn Bhd [2020] 2 CLJ 609 MMC Oil & Gas Engineering Sdn Bhd v Tan Bock Kwee & Sons Sdn Bhd [2016] 2 MLJ 428 (CA) Mukand Ltd v. Malaysia Steel Works (KL) Sdn Bhd [2010] 6 CLJ 282 Ng Hoo Kui & Anor v Wendy Tan Lee Peng (administratrix for the estate of Tan Ewe Kwang, deceased) & Ors [2020] 12 MLJ 67 (FC) Noor Azahar Habin v Rajeswari Sithampara Pillai [1991] 1 CLJ 150 Ong Ee Lim v Government of Federal Malay States [1937] 1 MLJ 40 S/N 9yLMFpE1REi4lxycjHvHSA **Note : Serial number will be used to verify the originality of 23 this document via eFILING portal Pekat Teknologi Sdn Bhd v. Novaris PTY Ltd & Anor [2015] 1 CLJ 865 Popular Industries Ltd v. The Eastern Garment Manufacturing Co. Sdn Bhd [1990] 2 CLJ Projek Lebuhraya Utara-Selatan Sdn Bhd v. Kim Seng Enterprise (Kedah) Sdn Bhd [2013] 6 CLJ 958 Sri Kajang Rock Products Sdn Bhd v Mayban Finance Bhd [1992] 1 CLJ 204 Sulisen Sdn Bhd v. Kerajaan Malaysia [2006] 7 CLJ 247 Sundram Veeriah v Magnificent Diagraph Sdn Bhd [2011] 5 CLJ 821 Suwiri Sdn Bhd v. Government of the State of Sabah [2008] 1 MLJ 743 Teng Ngit Yoong v. Liew Nyok Fen [2020] 1 LNS 747 Tuan Haji Ishak bin Ismail & Ors v. Leong Hup Holdings Bhd & Others [1996] 1 CLJ 393 Wee Lian Construction Sdn Bhd v. Ingersoll-Jati Malaysia Sdn Bhd [2010] 4 CLJ 203 S/N 9yLMFpE1REi4lxycjHvHSA **Note : Serial number will be used to verify the originality of 24 this document via eFILING portal Legislation: Contracts Act 1950, s 135 Evidence Act 1950, ss 103 & 114(g) Sale of Goods Act 1957, ss 2, 16 & 42 S/N 9yLMFpE1REi4lxycjHvHSA **Note : Serial number will be used to verify the originality of 25 this document via eFILING portal