LOW XUE LI (Pemilik tunggal perniagaan yang dikenali sebagai TIONGER ENTERPRISE No. Pendaftaran Perniagaan. 201603223169 (002561432-W) ASUWARIS SDN BHD

LOW XUE LI (Pemilik tunggal perniagaan yang dikenali sebagai TIONGER ENTERPRISE No. Pendaftaran Perniagaan. 201603223169 (002561432-W) ASUWARIS SDN BHD

The appeal was allowed because the Magistrate erred in accepting an alleged oral variation that contradicted the clear written Terms and Conditions requiring variations to be in writing and signed by a director, and in failing to apply ss.91-92 of the Evidence Act; the evidence and admissions showed the installed cubicles deviated from the written specifications and no valid written VO existed, warranting setting aside the Magistrate's decision and remittal for assessment of damages.

Citation
WA-11BM-1-12/2022 (Mahkamah Tinggi)
Parties
Appellant/plaintiff: Low Xue Li; Respondent/defendant: Asuwaris Sdn Bhd
Court
High Court
Jurisdiction
Malaysia
Judgment Date
12 May 2023
Case Number
WA-11BM-1-12/2022 (Mahkamah Tinggi)
Procedural Posture
Civil Appeal (high Court) / Judgment on Appeal; Remitted to Trial Court for Assessment of Damages
Outcome
Appeal allowed; Magistrate's decision set aside; matter remitted to the Magistrate for assessment of damages; costs awarded to Appellant.
Legal Topics
Variation Order, Terms and Conditions, Written Requirement for Variation, Evidence Act Ss.91 92, Appellate Review/plainly Wrong Test, Assessment of Damages
Source Language
Malay/English
Contract Law Evidence Construction Law Civil Procedure Variation Order Terms and Conditions Written Requirement for Variation Evidence Act Ss.91 92 +2 more

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Parties

Low Xue Li

Appellant/plaintiff

Asuwaris Sdn Bhd

Respondent/defendant

Procedural Posture

Civil Appeal (high Court) / Judgment on Appeal; Remitted to Trial Court for Assessment of Damages

Legal Issues

  1. 1 Whether an oral variation order is enforceable where the contract/quotation required variations to be in writing and signed by a director
  2. 2 Whether the learned Magistrate committed insufficient judicial appreciation of evidence and misdirected herself by accepting an alleged oral variation
  3. 3 Whether ss.91 and 92 of the Evidence Act bar admission of oral evidence to vary the written quotation

Ratio Decidendi

The appeal was allowed because the Magistrate erred in accepting an alleged oral variation that contradicted the clear written Terms and Conditions requiring variations to be in writing and signed by a director, and in failing to apply ss.91-92 of the Evidence Act; the evidence and admissions showed the installed cubicles deviated from the written specifications and no valid written VO existed, warranting setting aside the Magistrate's decision and remittal for assessment of damages.

Court Disposition

Appeal allowed; Magistrate's decision set aside; matter remitted to the Magistrate for assessment of damages; costs awarded to Appellant.

Orders

  • Appeal allowed
  • Magistrate's judgment dismissed and set aside