AMCAR WORLD SDN BHD MAH CHOON MING

WA-11BNCvC-73-10/2023 Kand. 21 09/01/2025 16:37:45 DALAM MAHKAMAH TINGGI MALAYA DI KUALA LUMPUR DALAM WILAYAH PERSEKUTUAN MALAYSIA RAYUAN NO: WA-11BNCvC-73-10/2023 ANTARA AMCAR WORLD SDN. BHD. (No. Syarikat: 1378934-W) ...PERAYU DAN MAH CHOON MING (NO. K/P: 831217-14-5137) ...RESPONDEN [Dalam Perkara ] DALAM MAHKAMAH MAJISTRET DI KUALA LUMPUR DALAM WILAYAH PERSEKUTUAN KUALA LUMPUR, MALAYSIA GUAMAN SIVIL NO: WA-A72NCvC-4133-10/2022 ANTARA MAH CHOON MING (NO. K/P: 831217-14-5137) ...PLAINTIF DAN AMCAR WORLD SDN. BHD. (No. Syarikat: 1378934-W) ...DEFENDAN [Diputuskan oleh Majistret Fatin Binti Mohd Nor di Mahkamah Majistret di Kuala Lumpur pada 11 Oktober 2023] Didengar bersama 1 DALAM MAHKAMAH TINGGI MALAYA DI KUALA LUMPUR S/N biZOogFy0WrW2IkNIDBKA RAYUAN NO: WA-11BNCvC-73-10/2023 & WA-11BNCvC-74-10/2023 **Note : Serial number will be used to verify the originality of this document via eFILING portal DALAM MAHKAMAH TINGGI MALAYA DI KUALA LUMPUR DALAM WILAYAH PERSEKUTUAN MALAYSIA RAYUAN NO: WA-11BNCvC-74-10/2023 ANTARA MAH CHOON MING (NO. K/P: 831217-14-5137) ...PERAYU DAN AMCAR WORLD SDN. BHD. (No. Syarikat: 1378934-W) ...RESPONDEN [Dalam Perkara ] DALAM MAHKAMAH MAJISTRET DI KUALA LUMPUR DALAM WILAYAH PERSEKUTUAN KUALA LUMPUR, MALAYSIA GUAMAN SIVIL NO: WA-A72NCvC-4133-10/2022 ANTARA MAH CHOON MING (NO. K/P: 831217-14-5137) ...PLAINTIF DAN AMCAR WORLD SDN. BHD. (No. Syarikat: 1378934-W) ...DEFENDAN [Diputuskan oleh Majistret Fatin Binti Mohd Nor di Mahkamah Majistret di Kuala Lumpur pada 11 Oktober 2023] 2 DALAM MAHKAMAH TINGGI MALAYA DI KUALA LUMPUR S/N biZOogFy0WrW2IkNIDBKA RAYUAN NO: WA-11BNCvC-73-10/2023 & WA-11BNCvC-74-10/2023 **Note : Serial number will be used to verify the originality of this document via eFILING portal GROUND OF JUDGMENT [1] There is a plethora of authorities on the principles of appellate intervention. Mindful as I am, that this Court ought to be slow in overruling any order of the trial judge, I was constrained to allow part of the appeal filed by the Defendant Amcar World Sdn Bhd. This was due to my finding a grave error in the decision of the learned magistrate. After making her finding of facts, the learned magistrate ought to have allowed either the main prayers or the alternative prayers in the Statement of Claim. Instead, she erroneously allowed the alternative prayers as well as the main prayers – justifying appellate intervention under “the plainly wrong test”. [2] There were two appeals filed against the decision of the learned magistrate. The Defendant Amcar World Sdn Bhd’s appeal was registered as Appeal No. WA-11BNCvC-73-10/2023. The Plaintiff Mah Choon Ming also filed an appeal, which was registered as Appeal No. WA-11BNCvC-74-10/2023. I decided to hear both appeals together as they arose out of a single decision of the learned magistrate. Instead of referring to the parties as “the Appellant” and “the Respondent” and confusingly repeat the respective appeal number, they shall be referred to herein as “the Plaintiff” and “the Defendant” respectively. [3] Even though the learned magistrate had in fact over-compensated the Plaintiff by allowing his main prayers as well as his alternative prayers, she did not allow the Plaintiff’s claim for exemplary damages. The Plaintiff’s appeal was mainly to seek exemplary damages. As I found no merits in his appeal, I decided to dismiss it. 3 DALAM MAHKAMAH TINGGI MALAYA DI KUALA LUMPUR S/N biZOogFy0WrW2IkNIDBKA RAYUAN NO: WA-11BNCvC-73-10/2023 & WA-11BNCvC-74-10/2023 **Note : Serial number will be used to verify the originality of this document via eFILING portal [4] As for the Defendant’s appeal, it was filed because the Plaintiff’s claim was more than justifiably allowed; as mentioned above, the Plaintiff’s alternative prayers as well as his main prayers were allowed. I decided to allow part of the Defendant’s appeal and ordered the Defendant to pay the Plaintiff a lesser sum of RM14,500.00 as damages. My reasons are as explained below. Background Facts [5] Sometime in May 2022, the Plaintiff read an advertisement on the carlist.my website. It offered a Mazda motor car (‘the said Car”) for sale. He contacted the seller which was the Defendant company. After test driving the said Car, the Plaintiff decided that it ought to be inspected by a qualified mechanic before he decides whether to buy. The car salesman, who introduced himself as “Yuen”, agreed and together they went in the said Car to a mechanic chosen by the Plaintiff himself, at Prestige Carcare Sdn Bhd (“the Plaintiff’s 1st Mechanic”) for an inspection (“the Pre-Sale Inspection”). [6] After the Pre-Sale Inspection, the Plaintiff agreed to buy the said Car at a price of RM38,000.00. He proceeded to pay a booking fee of RM1,000.00 on 14th May 2022, followed by a second payment RM17,000.00 on 23rd May 2022 and the balance RM20,000.00 on 24th May 2022. [7] A document with the title “Vehicle Delivery Order” was prepared by the Defendant. There was no information about the year of first registration of the said Car nor the reading on its odometer. It contains bare information about the said Car, as follows: 4 DALAM MAHKAMAH TINGGI MALAYA DI KUALA LUMPUR S/N biZOogFy0WrW2IkNIDBKA RAYUAN NO: WA-11BNCvC-73-10/2023 & WA-11BNCvC-74-10/2023 **Note : Serial number will be used to verify the originality of this document via eFILING portal (a) Model : MAZDA 6 2.5SDN(A) (b) Chassis No: JM6GH1052C0227651 (c) Engine No: L510747996 (d) Registration Number: BLU 6228. [8] Problem arose soon after because the Plaintiff experienced vibrations while driving the said Car. He decided to send it to a mechanic in Perak for diagnosis and repairs to be carried out. The mechanic by the name of Kumar Rao A/L Santaraap (“the Plaintiff’s 2nd Mechanic”) was called as a witness for the Plaintiff at the Magistrates Court and he testified that he had doubts as to whether the said Car had travelled only about 88,000 kilometer – as shown on the odometer of the said Car. He explained that in his opinion, the condition of the said Car seemed to be like a car with a higher mileage. He therefore advised the Plaintiff to check the accuracy of the odometer of the said Car. [9] Thereafter, the Plaintiff contacted Province Auto Service Sdn Bhd, which an authorised Mazda service center, and discovered that the reading on the odometer recorded as at 21st January 2021 was 154,934 kilometer. In other words, the odometer had been tampered with. [10] Upon being confronted by the Plaintiff, the Defendant explained that it had no capacity to check the accuracy of odometer of the said Car and had assumed that it was accurate. The Defendant offered to take back the said Car and to refund the purchase price of RM38,000.00 paid by the Plaintiff or alternatively, to pay the Plaintiff RM2,000.00 as 5 DALAM MAHKAMAH TINGGI MALAYA DI KUALA LUMPUR S/N biZOogFy0WrW2IkNIDBKA RAYUAN NO: WA-11BNCvC-73-10/2023 & WA-11BNCvC-74-10/2023 **Note : Serial number will be used to verify the originality of this document via eFILING portal compensation. The Plaintiff rejected the Defendant’s offer as he wanted compensation of RM20,000.00. [11] The Plaintiff’s counter-offer was rejected by the Defendant because the price paid by the Plaintiff was only RM38,000.00 and RM20,000.00 would be more than half the price of the said Car. The impasse led to the Plaintiff filing the civil suit at the Magistrates Court below. Analysis of the learned Magistrate’s Finding of Facts [12] During the hearing of the appeal before me, I found it surprising that neither the Plaintiff’s counsel nor the Defendant’s counsel mentioned that the said Car was a ten-year old car as at the date of the transaction in May 2022. I observed that fact from the print-out of the advertisement, which stated in rather small fonts: [13] The date of first registration of the said Car was also stated in its registration certificate as 3rd August 2012, as could be seen in the Appeal Record, and therefore the said Car was about ten years old when it was sold to the Plaintiff in May 2022. I am mentioning this fact because the age of a motor car is a significant factor in determining its price unless it is of the vintage type or a rare model befitting a car collector’s collection. The said Car – a Mazda 6 – is neither a vintage car nor a collector’s item. [14] There was a plain error committed by the learned magistrate. Prayer (d) of the Plaintiff’s Statement of Claim started with the words 6 DALAM MAHKAMAH TINGGI MALAYA DI KUALA LUMPUR S/N biZOogFy0WrW2IkNIDBKA RAYUAN NO: WA-11BNCvC-73-10/2023 & WA-11BNCvC-74-10/2023 **Note : Serial number will be used to verify the originality of this document via eFILING portal “Sebagai alternatif kepada (a), (b) dan (c), Defendan perlu membayar…” The fact that prayers (a), (b) and (c) at para 21 are the main prayers while prayers (d), (e), (f) and (h) are alternative prayers were obviously overlooked by the learned magistrate which resulted in her error. For convenient reference, screenshots of those prayers from the Statement of Claim are pasted below, which : 7 DALAM MAHKAMAH TINGGI MALAYA DI KUALA LUMPUR S/N biZOogFy0WrW2IkNIDBKA RAYUAN NO: WA-11BNCvC-73-10/2023 & WA-11BNCvC-74-10/2023 **Note : Serial number will be used to verify the originality of this document via eFILING portal [15] The learned magistrate found that there was misrepresentation by the Defendant regarding the mileage travelled by the said Car. She held that the contract for the sale of the said Car was therefore void. Her finding was stated in para of her Grounds: [16] Had the learned magistrate, after making the above finding, gone on to allow only prayers (a), (b) and (c) as stated in para 21 of the Plaintiff’s Statement of Claim – which are the Plaintiff’s main prayers, i.e. for rescission of the contract, the purchase price of RM38,000.00 to be refunded with interest at 5% per annum and a consequential order for possession and ownership of the said Car to be reverted to the Defendant, that would have been the end of the case. However, the learned magistrate went on to make further findings and orders. [16] The next significant finding of the learned magistrate was that the Plaintiff relied on the assessment of the Plaintiff’s 1st Mechanic during the Pre-Sale Inspection and decided to purchase the said Car with knowledge that it was faulty. She also found that the said Car must have 8 DALAM MAHKAMAH TINGGI MALAYA DI KUALA LUMPUR S/N biZOogFy0WrW2IkNIDBKA RAYUAN NO: WA-11BNCvC-73-10/2023 & WA-11BNCvC-74-10/2023 **Note : Serial number will be used to verify the originality of this document via eFILING portal been of merchantable quality and fit for its purpose. This could be seen at paras 29, 32, 33 and 35 of her Grounds, which I have pasted below: [17] Bearing in mind that the learned magistrate had decided to allow the main prayers for rescission as prayed, i.e. prayers (a), (b) and (c) of para 21 of the Plaintiff’s Statement of Claim, she patently overlooked prayer (d) of the Plaintiff’s Statement of Claim which starts with the words: “Sebagai alternatif kepada (a), (b) dan (c), Defendan perlu membayar…”, as she had gone on to allow the alternative prayers in (e) and (h) as well. This is as manifested in the sealed Judgment. An excerpt of the orders made is pasted below: 9 DALAM MAHKAMAH TINGGI MALAYA DI KUALA LUMPUR S/N biZOogFy0WrW2IkNIDBKA RAYUAN NO: WA-11BNCvC-73-10/2023 & WA-11BNCvC-74-10/2023 **Note : Serial number will be used to verify the originality of this document via eFILING portal [18] The law is trite that a plaintiff cannot have both his main prayer and his alternative prayer to be granted. This was succinctly explained in the judgment of Justice Abang Iskandar bin Abang Hashim (presently the PCA) in Jupiter Securities Sdn Bhd v. Datin Wo Tang Koi [2015] CLJU 1558: “[55] From the above stated prayer (iv), this Court would assume that when the Plaintiff stated "against the Defendants jointly and severally..." it had meant to include D4 though there was no reference to D4 at all in the preceding prayers. This Court also would gather that the joint and several liability against D4 would be premised on his involvement in the alleged conspiracy to injure the Plaintiff. And lastly, prayer (iv) has been a prayer in the alternative. The effect of praying in the alternative is that the Plaintiff has to make an election at the trial as to which of the prayers that it would be inviting the court to decide 10 DALAM MAHKAMAH TINGGI MALAYA DI KUALA LUMPUR S/N biZOogFy0WrW2IkNIDBKA RAYUAN NO: WA-11BNCvC-73-10/2023 & WA-11BNCvC-74-10/2023 **Note : Serial number will be used to verify the originality of this document via eFILING portal on. The fact of the matter is that the Plaintiff cannot have both the prayers that had been pleaded in the alternative, to be granted to it. Such an order by this Court, would inevitably lead to unjust enrichment or double accounting, in favour of, but unfairly against, the Plaintiff. [57] In the result, as this Court had found that D1, D2 and D3 in the D1 suit to be liable individually for their respective outstanding trades in the Nauticalink shares this Court cannot now make any order as prayed for in the alternative prayer in (iv) as it was couched as an alternative prayer.” (emphasis added) [19] Further, with respect, the learned magistrate misdirected herself when she stated in her Grounds that she was relying on S.66 of the Contracts Act 1950 to allow the alternative prayer for RM12,511.00. In para 41 of her Grounds, she wrote: [20] S.66 Contracts Act 1950 is clearly not about paying damages for any misrepresentation. It would be to justify a refund of the purchase price by the Defendant, and with the Plaintiff returning possession of the said Car and transferring ownership back to the Defendant. S.66 reads: “When an agreement is discovered to be void, or when a contract becomes void, any person who has received any advantage under the agreement or contract is bound to restore it, or to make compensation for it, to the person from whom he received it.” 11 DALAM MAHKAMAH TINGGI MALAYA DI KUALA LUMPUR S/N biZOogFy0WrW2IkNIDBKA RAYUAN NO: WA-11BNCvC-73-10/2023 & WA-11BNCvC-74-10/2023 **Note : Serial number will be used to verify the originality of this document via eFILING portal [21] The learned magistrate had erred in relying on S.66 Contracts Act 1950 as authority to order the Defendant to pay the Plaintiff RM12,511.00 for new spare parts to be installed in the said Car – which was a 10-year-old car at the material time. The learned magistrate had also clearly erred in allowing the Plaintiff’s prayer, which was in fact an alternative prayer. As pointed out above, the judgment of Justice Abang Iskandar in Jupiter Securities Sdn Bhd (supra) had made it abundantly clear on this point. Thus, appellate intervention is justified to set aside the learned magistrate’s judgment. [22] As for the Plaintiff’s claim for exemplary damages, I wholly agree with the learned magistrate that it would be unjustifiable. The Plaintiff had the benefit of the Pre-Sale Inspection performed by the Plaintiff’s 1st Mechanic before he decided to purchase the said Car. In view of the learned magistrate’s finding that the Plaintiff went ahead to purchase the said Car with full knowledge of its faulty condition, I find that the Plaintiff’s prayer for exemplary damages was rightly dismissed. Fair and Equitable Remedy for the Parties [23] Now, what would be a fair and equitable remedy for the parties in the light of the finding of facts made by the learned magistrate? I am mindful of the fact that the Plaintiff had chosen to keep the said Car instead of returning it then to seek a full refund and claim damages from the Defendant. [24] The evidence shows that the Defendant did offer an ‘olive branch’ to take the said Car back and give a refund but its offer was rejected by the Plaintiff. In other words, the Plaintiff, who has received the transfer of 12 DALAM MAHKAMAH TINGGI MALAYA DI KUALA LUMPUR S/N biZOogFy0WrW2IkNIDBKA RAYUAN NO: WA-11BNCvC-73-10/2023 & WA-11BNCvC-74-10/2023 **Note : Serial number will be used to verify the originality of this document via eFILING portal the said Car in his name, has been continuing to use the said Car since he took delivery of it in May 2022. I am of the view that it would be inequitable to allow the Plaintiff to return the said Car after having used it for nearly two years and to get a full refund of the price he paid then. [25] In the circumstances, the Plaintiff ought to be held to have affirmed the contract for his purchase of the said Car. However, the Defendant should be ordered to pay general damages to the Plaintiff – based on the learned magistrate’s finding of fact that there was misrepresentation about the mileage of the said Car. [26] The Plaintiff had paid the price of the said Car on the basis that it had been driven for only about 90,000 kilometer when in fact it had done 154,934 kilometer as at 21st January 2021. By the date of the sale to the Plaintiff in May 2022, the car would, on a balance of probabilities, have been driven for over 160,000 kilometer, and perhaps more. I take judicial notice that a car which has been driven for more than 160,000 kilometer would be worth significantly less than a car which has done only about 90,000 kilometer. The Plaintiff should therefore be entitled to general damages. Since the price paid by the Plaintiff was only RM38,000.00 and he paid his mechanic RM12,511.00 to restore the said Car – which he knew was already ten years old in year 2022 – to good working condition, I am of the view that general damages of RM14,500.00 would more than adequately compensate the Plaintiff. Conclusion [27] In conclusion, due to the learned magistrate’s plain error in allowing the Plaintiff’s alternative prayers as well as his main prayers – 13 DALAM MAHKAMAH TINGGI MALAYA DI KUALA LUMPUR S/N biZOogFy0WrW2IkNIDBKA RAYUAN NO: WA-11BNCvC-73-10/2023 & WA-11BNCvC-74-10/2023 **Note : Serial number will be used to verify the originality of this document via eFILING portal S/N biZOogFy0WrW2IkNIDBKA **Note : Serial number will be used to verify the originality of this document via eFILING portal Counsel for the Appellant: Tan Yan Yong SOLICITORS FOR THE APPELLANT: MESSRS Yy Tan & Co. Advocates & Solicitors A-12-13 Tower A, Tropicana Avenue, Persiaran Tropicana Golf & Country Resort, 47410 PETALING JAYA, SELANGOR Counsel for the Respondent: Lim Meng Guan SOLICITORS FOR THE RESPONDENT: MESSRS ZI & ASSOCIATES Advocates & Solicitors 5-3A Menara MBMR No. 1. Jalan Syed Putra, 58000 KUALA LUMPUR. 15 DALAM MAHKAMAH TINGGI MALAYA DI KUALA LUMPUR S/N biZOogFy0WrW2IkNIDBKA RAYUAN NO: WA-11BNCvC-73-10/2023 & WA-11BNCvC-74-10/2023 **Note : Serial number will be used to verify the originality of this document via eFILING portal CASE REFERRED TO: 1. Jupiter Securities Sdn Bhd v. Datin Wo Tang Koi [2015] CLJU 1558. 16 DALAM MAHKAMAH TINGGI MALAYA DI KUALA LUMPUR S/N biZOogFy0WrW2IkNIDBKA RAYUAN NO: WA-11BNCvC-73-10/2023 & WA-11BNCvC-74-10/2023 **Note : Serial number will be used to verify the originality of this document via eFILING portal