ALI BABA CONSTRUCTION & TRANSPORTATION SDN BHD (NO. SYARIKAT: 1117102-A) RUHANIBABA ENTERPRISE SDN BHD (NO. SYARIKAT: 413971-A)

ALI BABA CONSTRUCTION & TRANSPORTATION SDN BHD (NO. SYARIKAT: 1117102-A) RUHANIBABA ENTERPRISE SDN BHD (NO. SYARIKAT: 413971-A)

The plaintiff failed to prove a joint site inspection or that Musa was the defendant's authorised representative; key evidence relied upon by the plaintiff was hearsay and not the best evidence; contemporaneous documents supported the defendant's position and showed deliveries equated to 228,072 m³ with payments calculated on 80% of loads; the plaintiff retained the burden and did not discharge it, therefore the sessions court's finding of overpayment recoverable under s73 Contracts Act 1950 was correct and the appeal must be dismissed.

Citation
JA-12BNCvC-3-01/2019 (Mahkamah Tinggi)
Parties
Appellant/plaintiff: ALI BABA CONSTRUCTION & TRANSPORTATION SDN BHD; Respondent/defendant: RUHANIBABA ENTERPRISE SDN BHD
Court
High Court
Jurisdiction
Malaysia
Judgment Date
24 August 2020
Case Number
JA-12BNCvC-3-01/2019 (Mahkamah Tinggi)
Procedural Posture
Civil Appeal / Appeal Hearing and Judgment
Outcome
Appeal dismissed; Sessions Court decision affirmed; costs awarded to Respondent.
Legal Topics
Joint Site Measurement, Quantification of Supply, Hearsay Rule, Adverse Inference for Non‑production of Witness, Contra Proferentum, Recovery of Money Paid by Mistake (s73 Contracts Act 1950)
Source Language
Malay/English
Contract Law Evidence Law Civil Procedure Joint Site Measurement Quantification of Supply Hearsay Rule Adverse Inference for Non‑production of Witness Contra Proferentum +1 more

Case Brief

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Parties

ALI BABA CONSTRUCTION & TRANSPORTATION SDN BHD

Appellant/plaintiff

RUHANIBABA ENTERPRISE SDN BHD

Respondent/defendant

Procedural Posture

Civil Appeal / Appeal Hearing and Judgment

Legal Issues

  1. 1 Whether a valid joint site inspection/measurement was conducted as required by the contract
  2. 2 Whether the volume of earth supplied was 246,575.253 m³ as claimed by the plaintiff
  3. 3 Whether an adverse inference should be drawn for failure to call Musa as a witness and against which party

Ratio Decidendi

The plaintiff failed to prove a joint site inspection or that Musa was the defendant's authorised representative; key evidence relied upon by the plaintiff was hearsay and not the best evidence; contemporaneous documents supported the defendant's position and showed deliveries equated to 228,072 m³ with payments calculated on 80% of loads; the plaintiff retained the burden and did not discharge it, therefore the sessions court's finding of overpayment recoverable under s73 Contracts Act 1950 was correct and the appeal must be dismissed.

Court Disposition

Appeal dismissed; Sessions Court decision affirmed; costs awarded to Respondent.

Orders

  • Appeal dismissed and the decision of the Sessions Court dated 14 January 2019 affirmed
  • Appellant ordered to repay the overpaid sum to the Respondent as previously determined