IN THE HIGH COURT OF MALAYA AT KUALA LUMPUR

IN THE STATE OF WILAYAH PERSEKUTUAN, MALAYSIA

CIVIL ACTION NO : S6-22-1644-2003
BETWEEN

DOLOMITE READYMIXED CONCRETE

SDN BHD

... PLAINTIFF
AND

1.

ZALAM CORPORATION SDN BHD

(NO. SYARIKAT : 258971-P)

2.

LEE IN JEE
(NO. K/P: 471006-04-5199)

3.

LEE SWEE HONG

(NO. K/P: 410226-10-5457)

4.

LONG CHIN LOI

(NO. K/P: 430402-10-5391)

5.

YEOW CHAI BOON

(NO. K/P: 500726-05-5029)

6.

HOO LEE BENG

(NO. K/P: 600224-10-6277)

7.

KOR FOOK HENG

(NO. K/P: 610316-O8-5943)

... DEFENDANTS

GROUNDS OF JUDGMENT

BACKGROUND

1.

The Plaintiff claimed from the 1st Defendant the sum of

RM266,279.03 being an outstanding sum due and owing
pursuant to two contracts entered into between both parties on
1st July 1999 and 14th June 1999 respectively for the supply and
delivery of ready mixed concrete (concrete) to the 1st
Defendants project sites. The outstanding sum was in respect of
the period from 15th July 2000 to 15th October 2000 (Annexure
A to the Plaintiffs Statement of Claim (SOC)).

2.

The Plaintiffs claim against the 2nd to the 7th Defendants (2nd to
7th Defendants) was in respect of the Guarantee and or the
Indemnity Form dated 22nd May 1999 executed by the 2nd to 7th
Defendants in favour of the Plaintiff (Exhibit P4 at page 219 to
222 of B1 (Part C)) where the 2nd to the 7th Defendants agreed
to unconditionally and irrevocably guarantee and indemnify the
Plaintiff as principal in respect of all monies due to the Plaintiff by
the 1st Defendant.

3.

The 1st Defendant denied liability and pleaded that in fact it was
the Plaintiff which owed the 1st Defendant the sum of
RM311,359.17 being the sum due and owing for debit notes
issued from 27th October 1999 to 29th July 2000 (paragraph 21
of the Defendants Defence and Counterclaim). Hence the 1st
Defendant claimed the said amount from the Plaintiff by way of a
Counterclaim.
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4.

This case proceeded by way of a full trial and after one witness
having testified for the Plaintiff, the Plaintiff closed its case. At
the end of the Plaintiffs case the learned Counsel for the
Defendants informed the Court that the Defendants would be
submitting on no case to answer with liberty to call for evidence
to prove their Counterclaim. I then proceeded to hear the
submissions of the learned Counsels.

5.

After having given much consideration to the evidence, both

documentary as well as testimonial, and the submissions by the
learned Counsels for the respective parties I find that the Plaintiff
had failed to prove its case on the balance of probabilities.
Hence on 29.11.2011 I dismissed the Plaintiffs case with costs. I
then allowed the Defendants to proceed with their Counterclaim.

6.

Aggrieved by the said decision the Plaintiff appealed to the Court

of Appeal Malaysia against the whole of the said decision. The
Grounds of Judgment in respect of the Plaintiffs claim against
the Defendant were as in Civil Appeal No. W-02-3166-12/2011.

7.

The 1st Defendants Counterclaim against the Plaintiff was for the
sum of RM311,359.17, among others, for short supply of
concrete, idling charges and compensation to flood victims which
the 1st Defendant had paid to Majlis Perbandaran Petaling Jaya.
The particulars of the 1st Defendants Counterclaim could be
seen at page 20 of the Document A. On or about 7.1.2004 the
1st Defendant had applied for summary judgment to be entered
against the Plaintiff in respect of the Counterclaim pursuant to
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Order 14 of the Rules of the High Court 1980. The 1st

Defendants application for summary judgment was allowed by
His Lordship Dato Abdul Malik bin Ishak on 9.11.2006 for part of
the Counterclaim which was RM161,979.59. The balance of the
Counterclaim amounting to RM149,513.00 was ordered to be
tried by this Court.
8.

Notwithstanding the appeal filed herein by the Plaintiff against

my order dated 29.11.2011 to dismiss the Plaintiffs claim and to
allow the 1st Defendant to prove its Counterclaim against the
Plaintiff, I proceeded to hear the 1st Defendants Counterclaim
against the Plaintiff in view of the fact this was an old matter
which required early disposal. The 1st Defendants Counterclaim
was heard on 14.2.2012, 2.3.2012 and 15.3.2012 respectively.
After having heard the submissions by both the learned
Counsels on 14.4.2012 I dismissed the 1st Defendants
Counterclaim with costs. Aggrieved by the said decision the 1st
Defendant herein filed an appeal against the said decision to the
Court of Appeal of Malaysia. This Grounds of Judgment is in
respect of the 1st Defendants Counterclaim against the Plaintiff
for the remaining sum of RM149,513.58.

9.

For ease of reference I would identify the parties to the

Counterclaim in the same manner I had referred to them in the
original claim, the Plaintiff and 1st Defendant respectively. The
facts pertaining to the relationship between the Plaintiff and the
1st Defendant had been detailed out in the Grounds of Judgment
in Civil Appeal No. W-02-3166-12/2011 which were prepared
earlier and the same shall be adopted and referred to herein
4

wherever relevant for the purpose of this Counterclaim. For fear

of duplicity I refrained from reproducing those facts herein.

THE DOCUMENTS

10.

At the outset of the trial parties have agreed for the following
documents to be used:

Description

Document

i.

Bundle of Pleadings

ii.

Bundle of Document (Jilid 1)

B1

iii.

Bundle of Document (Jilid 2)

B2

iv.

Bundle of Document (Jilid 3)

B3

v.

Supplementary Bundle of Document

B4

vi.

Issues To Be Tried

vii.

Statements of Disputed Facts

viii.

Plaintiffs Opening Statement

Defendants Opening Statements

ix.

THE ISSUES TO BE TRIED

11.

The issues to be tried were as set out in the document marked

as C. The more pertinent issues for the purpose of the
Counterclaim would be items 11 to 27 of Document C.

THE CASE FOR THE 1st DEFENDANT

12.

The 1st Defendant called one Lee Chee Seng (DW1) as its
witness. DW1 was the Senior Manager in charge of the project at
the material time and currently a shareholder and Executive
Director of the Defendant. According to DW1 around July 1999
the 1st Defendant was the main contractor in a project known as
Cadangan Membina 4 Blok Pangsapuri di atas Lot PT 9579,
Mukim Damansara, Daerah Petaling, PJU 1, Petaling Jaya,
Selangor (the Project) and the Plaintiff was the sole supplier
of concrete for the Project. In order to ensure prompt delivery of
concrete to the Project the Plaintiff had set up an in house plant
within the Project.

13.

During the initial part of the Project the Plaintiff was able to
supply the concrete to the satisfaction of the 1st Defendant.
However around September 1999 the Plaintiff had serious
problem in meeting with its supply which had resulted in the
delay, non supply and short supply of the concrete.

The

concrete supplied too was not in accordance with the

specification as agreed by both parties. Besides that Plaintiff
had over charged the 1st Defendant for the concrete supplied.
The Plaintiffs shortfall on delivery, non delivery and delay in
delivery had slowed down the Defendants progress of building
works at the site which had resulted in wastage of resources,
idling time and loss of productivity in terms of labour and
machinery. The disputes between the Plaintiff and the 1st
Defendant were as demonstrated in the following Exhibits:

i.

Failure to supply - Exhibits D51 (page 5 of B1) where the

Plaintiff negotiated, the 1st Defendant agreed to accept
RM900.00 and a debit note was issued;

ii.

Breakdown of supply and late delivery - Exhibit D52 (page

1220 of B4). The Plaintiff was charged RM3,000.00. The
Plaintiff admitted and requested the 1st Defendant to waive the
idling time and productivity loss charged and the 1st Defendant
did not agree - Exhibits D53 (page 13 of B1) & D54 (page 19
of B1);

iii. The discrepancy as to quantities supplied amounting to

311.63 M3. Debit note was issued - D55 (page 10 of B1).

iv. Discrepancy in supply and Defendant was overcharged

for RM103,301.01 - Exhibits D57 (page 68-69 of B1). The 1st
Defendant discovered that this problem was caused by the
Plaintiffs delivery trucks which contain a lot of hard concrete
in the trucks which was not cleared by the Plaintiff. As a result
of which the Plaintiff proposed a re measurement of all
structural concrete in order to ascertain the actual amount of
concrete supplied. The 1st Defendant was agreeable to re
measurement if required - Exhibits D58 (page 20 of B1);

v.

The 1st Defendant claimed idling charges as reflected in

Exhibits D59 (page 23-24 of B1), D60 (page 27-28), D61
(page 31-32), D62 (page 50-52), D63 (page 120-126), D64
(page 130 of B1), D65 (page 141-143 of B1);

vi. The Plaintiff responded by giving excuses and appealing and

or requested for waiver of such charges which were rejected
by the 1st Defendant. The correspondence could be seen in
Exhibits D66 (page 38 of B1), D67 (page 39 of B1), D68
(page 44 of B1) & D69 (page 118-119 of B1); and

vii. The discrepancies in supply on car park podium - D70

(page 79 of B1), D71 (page 90 of B1), D72 (page 99 of B1),
D73 (page 117 of B1), D74 (page 53 of B1), D75 (page 89
of B1) & D76 (page 64-65 of B1).

14.

The 1st Defendant had incurred additional expenses to clear the

site due to the dumping of concrete at the Project by the
Plaintiffs trucks which had caused the flooding to the
neighbouring area on 26.4.2000. These were shown in Exhibits
D79 (page 155 of Document B1), D81 (page 157 of B1), D83
(page 55-57 of B1), D84 (page 58-63 of B1), D86 (page 1 of
B1).

15.

The 1st Defendant had to pay Majlis Perbandaran Petaling Jaya

the sum of RM25,000.00 as compensation to the flood victims
affected by the flood (Exhibit D87 (at page 150-151 of B1)). The
flood was caused by the Plaintiffs failure to clear the blocked
culverts which had obstructed the flow of water at the affected
area despite the problem having been highlighted by the 1st
Defendant to the Plaintiff (Exhibit D88 (at page 98 of B1) and
(Exhibit 89 (at page 268 of B1)).

16.

On 10.5.2000 a meeting was held at the 1st Defendants site

office to resolve all disputes between parties which were also
attended by the representatives of the Plaintiff.

This was

followed by a second meeting held on 17.5.2000 where both

parties had discussed on how best to resolve the outstanding
issues between them. The 1st Defendant then had caused a
letter to be issued to the Plaintiff confirming the Plaintiffs
agreement to work out the total quantity of concrete supplied
against the site measured quantity (Exhibit D92 at page 133138 of B1).
17. The Plaintiff admitted the 1st Defendants claim vide a letter dated
25.7.2000 and the 1st Defendant had accepted the proposal to be
reimbursed (see Exhibit D92 (page 133-138 of B1)). Parties
had further negotiated on the sum claimed and the 1st Defendant
had accepted a lesser sum amounting to RM143,079.59 for the
claim on condition the Plaintiff to exercise a set off account. This
had led to Exhibit P39 to be executed by both the Defendant and
the Plaintiff (at page 159-160 of B1).
18.

As regards the contribution on damages as a result of the Flood

and Water overflow paid to MPPJ the Plaintiff admitted that it
was fully responsible for the flood and the 1st Defendant had
agreed to accept a lesser sum of RM18,900.00 instead of
RM25,200.00 so long as the Plaintiff exercise a set off against
the Plaintiffs supply of concrete and the Plaintiffs account with
the Defendant (Exhibit P40 at page 166 of B1)).

19.

Despite what was negotiated and agreed the Plaintiff had issued
a notice of demand against the Defendant claiming for the sum
of RM266,279.03 for the concrete sold and delivered for the
Project (Exhibit P26 (page 170-173 of B1) which was denied by
the Defendant. The 1st Defendant had also highlighted the
agreements made between parties pursuant to Exhibits D94 and
D95 (at pages 174 & 175 of B1).

20.

Hence the 1st Defendant vide its Counterclaim claimed against

the Plaintiff for the sum of RM311,359.17 together with the claim
for general damages, interest and costs. The Defendant had
obtained judgment for the sum of RM161,979.59 by way of
summary judgment against the Plaintiff on 9.11.2006 leaving a
sum of RM149,979.58 to be ventilated by this Court. The
Defendant prayed for judgment in the sum of RM149,379.58.
The Defendant had also in its submission pray for interest at 8%
in respect of the judgment which was entered before His
Lordship Dato Abdul Malik bin Ishak from 9.11.2006 to date.

CASE FOR THE PLAINTIFF

21.

The Plaintiff called its Managing Director, one Lew Choong

Keong (PW1) as its witness. According to PW1 the 1st Defendant
had via its Counterclaim claimed for the sum of RM311,359.17
being short supply of concrete, idling charges and compensation
to flood victims. The Plaintiff denied that it was liable to the 1st
Defendant for the sum claimed in the 1st Defendants
Counterclaim.

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22.

The Plaintiffs revised quotation for the Project dated 1.7.1999

(Exhibit P2 page 223 and 224 of B1) was signed by the 1st
Defendant on 8.7.1999. The Terms and Conditions of Sales
pertaining to the supply and delivery of concrete were as stated
at page 225 of B1. Both these terms were accepted by the 1st
Defendant and the respective document which were binding
were fully executed by both parties.

23.

In his Witness Statement (WSPW1) which was tendered and

read during the Plaintiffs case the Plaintiff had responded to all
claims stated in the Defendants Counterclaim (see Q & A 47 to
54 of WSPW1 tendered and read on 28.10.2011).

24.

Both the Plaintiff and the 1st Defendant had agreed to resolve
their differences by entering into a settlement agreement dated
8.1.2001 (Exhibit P39 (page 159 of B1)) and by the terms of the
settlement agreement the outstanding issues between parties
had been settled between them. PW1 was aware of the terms of
Exhibit P39 as he was the person responsible to approve those
terms on behalf of the Plaintiff. Pursuant to Exhibit P39, the 1st
Defendant had agreed to accept half of the total amount claimed
by the Defendant for short supply of concrete and idling charges
which was RM143,079.59.

25.

Pursuant to a letter dated 19.3.2001 (Exhibit P40 (at page 166

of B1)) the 1st Defendant had also agreed to define the parties
obligations pertaining to the compensation paid to Majlis
Perbandaran Petaling Jaya for the benefits of the flood victim.
PW1 was also aware of the terms of Exhibit P 40 as he was also
11

the person responsible to approve the scheme between parties.

According to Exhibit P40 the 1st Defendant had agreed to accept
the amount of RM25,200.00 as compensation claimed by Majlis
Perbandaran Petaling Jaya to the flood victim but only limited to
the amount of RM18,900.00 only.

26.

From Exhibits P39 and P40 the terms which were agreed by both
parties were so clear that the Plaintiff had agreed to absorb part
of the 1st Defendants claim mentioned in Q and A 11 to 15 of
DWS DW1 and the 1st Defendant would in turn pay the Plaintiff
the principal sum for the supply of the ready mixed concrete. In
short the balance sum of the 1st Defendants Counterclaim was
waived. Pursuant to Exhibit P39 and P40 the Plaintiff had agreed
to pay the 1st Defendant the sum of RM143,079.58 plus
RM18,900.00 which was equivalent of RM161,979.59. The
Plaintiff had no obligations to pay the 1st Defendant any further
sums as claimed by the 1st Defendant in the Counterclaim as the
1st Defendant had

already obtained summary judgment in

respect of the whole of the said amount.

Hence no further

payment was due from the Plaintiff to the 1st Defendant.

FINDINGS AND EVALUATION

Burden of Proof

27.

The law on the burden of proof is governed by the provisions

found in Chapter VII of Part III of the Evidence Act 1950 (the
Act). Pursuant to section 101 of the Act, the legal burden of
establishing the facts pleaded in the Counterclaim against the
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Plaintiff (1st Defendant in the Counterclaim) is on the 1st

Defendant (Plaintiff in the Counterclaim). At the conclusion of the
case this Court has a duty to determine whether sufficient
evidence had been adduced by the 1st Defendant to prove his
Counterclaim on the balance of probabilities for judgment to be
entered in favour of the 1st Defendant in respect of its
Counterclaim.

28.

Pursuant to section 106 of the Evidence Act 1950 the burden to

prove any facts which is especially within the knowledge of the
1st Defendant lies on the 1st Defendant.

29.

With this principle in mind I would now evaluate the 1st

Defendants evidence in order to ascertain if the 1st Defendant
had met with the standard of proof envisaged by the law. In
assessing the 1st Defendants evidence I have to ask myself and
be fully satisfied whether based on the evidence adduced by the
1st Defendant, the 1st Defendant had proved its Counterclaim
against the Plaintiff on the balance of probabilities.

30.

Firstly reference would have to be made to page 20 of Document

A, the 1st Defendants Counterclaim which stipulated that the 1st
Defendants claim comprised of RM311,359.17 for all items as
stated in the paragraph 13 -15. Out of this amount the sum of
RM161,979.59 was awarded to the 1st Defendant by way of
summary judgment on 9.11.2006 and the remaining sum of
RM149,376.58 was ordered to be tried herein. It could be seen
from Exhibit P39 (page 159 of B1) as a result of negotiation
between both parties to the contract, the 1st Defendant had
13

agreed to waive the sum of RM143,079.59 from the total sum of

RM286,159.17 of the idling charges (RM137,684.00 at page
23 24, 27 28, 31 32, 50 52, 120, 130 and 141 of B1) and
short supply of ready mixed concrete (RM136,645.00 at page 13
14 and 68 of B1 and at page 1220 of B4) as claimed by the
1st Defendant. This was accepted by the Plaintiff on 10.1.2001
(please see the bottom of page 159 of B1) where the Plaintiff
had confirmed and accepted the above sum by way of contra of
the

account.

Pertaining

to

the

sum

of

RM25,200.00

compensation to be paid to Majlis Perbandaran Petaling Jaya

for the benefit of flood victims who were affected by the flood on
26.4.2000, the 1st Defendant had agreed to set off the sum of
RM18,900.00 against the Plaintiffs supply of concrete and the
1st Defendants account with the Plaintiff. If the sum of
RM143,079.59 and RM18,900.00 were to be added the total
figure would be RM161.979.00.

This figure tallied with the

amount awarded by the Court in the summary judgment

proceedings.

31.

Exhibits P39 and P40 were tendered through PW1 in the original
action and the 1st Defendant had failed to strenuously cross
examine PW1 on the significance of these two pertinent
documents which had clearly stipulated the parties agreement to
waive and set off against each others account in respect of the
contract for the supply of concrete to the Project. However DW1
had in his cross examination testified that the 1st Defendant had
agreed to accept a lesser sum subject to conditions having been
fulfilled by the Plaintiff. As the Plaintiff had not satisfied these
conditions the Plaintiff was not entitled to enjoy the reduction
14

stated in Exhibits P39 and P40. When cross examined on this

issue DW1 was not able to explain to the Court what were the
conditions precedent to the fulfilment of the terms in Exhibit P39
and P40.

32.

The words of Exhibit P39 and P40 were so clear and

unambiguous and the 1st Defendant had in fact vide these two
Exhibits agreed for the sum of half of this amount, which was
RM143,079.59 and RM18,900.00 (RM161,979.59) as the
amount to be set off from the Defendants account with the
Plaintiff. Despite reiterating that there were conditions attached
to this agreements DW1 had failed to demonstrate to this Court
what those conditions were. If it was true as alleged by the 1st
Defendant that all parties had agreed to enter into the agreement
subject to certain conditions to be fulfilled the same ought to
have been expressly incorporated in the document. Failing which
the 1st Defendant was not entitled to bring in extrinsic evidence
by way of oral testimony to prove the existence of such
conditions in Exhibits P39 or P40.

33.

The burden was on the 1st Defendant to prove its case on the
balance of probabilities and on the evidence adduced thus far I
am satisfied the 1st Defendant had failed to meet with the
standard of prove required by the law. In any event I am satisfied
the 1st Defendant had already obtained judgment against the
Plaintiff for the sum of RM161,979.00 which was the amount
agreed pursuant to Exhibits P39 and P40. This amount was
agreed to by both the 1st Defendant and the Plaintiffs
representative, one Mr Teo Choon Seong.
15

34.

Despite what was deposed in the affidavit filed herein in respect

of the summary judgment, this Court having heard the
testimonies of the Plaintiffs and Defendants witnesses and
having perused the documentary evidence in a full trial was
entitled to arrive at its own findings on the value of these two
Exhibits P39 and P40 placed before it. I was satisfied that there
were negotiations between parties and both parties had agreed
to the terms as stated in Exhibits P39 and P40. I found that
there were no conditions attached to these two Exhibits (P39 and
P40) as claimed by DW1.

35.

In cross examination of PW1 by the learned Counsel for the

Plaintiff, DW1 reiterated that the 1st Defendant had agreed to
waive half of the amount claimed by it as stated in Exhibit P39
and only the sum of RM18,900.00 in respect of Exhibit P40,
subject to the conditions which were discussed in an earlier
meeting. Despite having testified that there were conditions
attached to Exhibit P39 and P40 as claimed by the 1st Defendant
which were discussed in an earlier meeting, DW1 was not able to
disclose to this Court what these condition were.

Neither could

DW1 explain the reason as to why these important conditions

were not incorporated in Exhibit P39 and or P40. It is obvious
here by his oral testimony DW1 had attempted to supplement the
terms agreed by both parties as in Exhibits P39 and P40.

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36.

In regards to importing extrinsic evidence to supplement the

words in Exhibit P39 and P40 suffice for me to refer to section 92
of the Evidence Act 1950 which excluded parol evidence to be
admitted to contradict a written document unless in situations
illustrated under the proviso to that section. Therefore the
Defendant could not vary the terms and or import words into
Exhibits P39 and P40 by way of oral evidence. There is a line of
authorities which support this principle of law. In the case of
Tractors Malaysia Sdn Bhd v. Kumpulan Pembinaan
Malaysian Sdn Bhd [1979] 1 MLJ 129, at page 129 the Court
held that:
In dealing with the issue before us, we bear in mind the following:
Where a contract has been reduced to writing,
It is in the writing that we must look for the whole of the terms
made between parties.

Per Viscount Haldane L.C. in Dunlop v. Selfridges at page 854.

And in such a circumstance, section 92 of the Evidence Act 1950
does not enable any party to that agreement to lead evidence
contradicting, varying, adding to or subtracting from its terms.

37.

Reference can also be made to the case of Keng Huat Film Co.
Sdn Bhd v. Makhanlall (Properties) Pte Ltd [1984] 1 MLJ 243
at page 247 where it was held that:
It should be noted that in Prenns case (ante) the House of Lords
refused to extend the courts interpretative power by allowing precontract negotiations to be looked at in aid of the construction of a
written document, by emphasising the disadvantages and danger
17

of departing from established doctrine and the virtue of the latter.

For the construction of a written agreement the established
doctrine is firstly to exclude evidence of negotiations leading up to
the contract on the ground that it is only the final agreement which
records the consensus and as such evidence of negotiations is
unhelpful; and secondly to exclude evidence of the parties
subjective intentions so that any individual purpose which either of
them hopes to achieve by the agreement and their own
interpretation and understanding of the agreement is not
admissible.

38. In Datuk Yap Peng Leong v. Sababumi [1997] 1 MLJ 587 it

was held that:
Where the contract was couched in unambiguous

language, the

Court must give effect to it.

39.

Relying on the above high authorities, it is clear that the Courts

would not admit parol evidence to contradict a written document
unless the facts come within the proviso under section 92 of
the Evidence Act 1950. In this case the Defendant had failed to
demonstrate that its case fell within the exception under section
92 of the Evidence Act 1950.

40.

I have also rejected the 1st Defendants claim for interest at the
rate of 8% per annum in respect of the judgment sum obtained
on 9.11.2009 before His Lordship Justice Dato Abd Malik bin
Ishak.

As the summary judgment application was heard and

disposed off by His Lordship Justice Dato Abdul Malik bin Ishak,
the 1st Defendant ought to have applied for the interest at the
18

said summary judgment proceeding not some 5 years later

before me.

Further the 1st Defendant had not even prayed for

interest in its summary judgment application (Refer Enclosure

8). I have also checked the minutes of the learned Judge and
found that the judgment sum ordered in respect of the summary
judgment did not carry with it any interest on the judgment sum.
Even the fair order dated

9.11.2006 (Enclosure 28) did not

indicate that interest was ordered by His Lordship Justice Abd

Malik bin Ishak. If the 1st Defendant was not clear as to whether
interest was ordered by his Lordship Justice Abd Malik bin Ishak
the learned Counsel for the 1st Defendant ought to have clarified
the issue with the learned Judge at that stage of the proceedings
or shortly after that.

For these reasons I rejected the 1st

Defendant prayer for

interest for the judgment obtained on

9.11.2006.

CONCLUSION

41. On the totality of the evidence adduced by the Defendant through

DW1 both testimonial and documentary I am satisfied the
Defendant had not discharged the onus of establishing its
pleaded case against the Plaintiff on the balance of probabilities.
Hence the Defendants Counterclaim against the Plaintiff is
dismissed with costs. In arriving at the above decision I had
carefully considered the evidence adduced by the Defendant, the
submissions by both the respective parties as well as authorities
tendered in support of their respective submissions. In relation to
costs and in view of my earlier decision do dismiss the Plaintiffs

19

case I have ordered for the costs of this proceedings to be taxed

between parties.

( ASMABI BINTI MOHAMAD)

Judicial Commissioner
High Court Of Malaya
Kuala Lumpur
(Civil 4 )

Dated

15 June 2012

Date of Decision

13 April 2012

Date of Notice of Appeal

24 April 2012

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Parties:
1.

Messrs T.J. Chin & Co

Advocate and Solicitor
For and on behalf of the Plaintiff
No. 313 & 314, Blok A
3rd Floor, Kelana Business Centre
97, Jalan SS 7/2
Selangor Darul Ehsan.
[Ref. No. 1-3636-2005[Ly]]

2.

Messrs S.K. Lam, Wong & Yap

Advocate and Solicitor
For and on behalf of the Defendants
Lot 498-2-6, Wisma Indah
Jalan Tun Razak
50400 Kuala Lumpur.
[Ref No: Z755(45)H/W/12)

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