IN THE SESSIONS COURT AT BINTULU IN THE STATE OF SARAWAK, MALAYSIA. SUIT NO. BTU-B52NCvC-4/ (SC) BETWEEN

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1 IN THE SESSIONS COURT T BINTULU IN THE STTE OF SRWK, MLYSI SUIT NO. BTU-BNCvC-/-0 (SC) BETWEEN GN CHIW CHING (WN.KP. 0--0) Trading under the name WTS SUPPLY & SERVICES (Certificate of Business Name Registration No. BTU/0/0) No., 1st Floor, Survey Lot 0, Parkcity Commerce Square, Phase, 000 Bintulu, Sarawak. Plaintiff ND 1 0 GW BUILDERS SDN. BHD. (COMPNY NO. 0-M) No., 1st Floor, Lot, Bormill Estate Commercial Centre, Jalan Tun hmad Zaidi druce, 0 Kuching, Sarawak. Defendant 1

2 ND CEMPK MJUMS SDN BHD (COMPNY NO. -) No., Lot, 1st Floor Berjaya Commercial Centre Jalan Sultan Iskandar 000 Bintulu, Sarawak THIRD PRTY GROUNDS OF DECISION (FTER FULL TRIL) The Claim The Plaintiff claims against the Defendant for the sum of RM,. as at 0 June 0 with interest on the sum of RM,. at the rate % per annum from 0 June 0 until full and final settlement for being the cost of goods and services supplied to the Defendant. 1 0 The Defendant disputes the Plaintiff s claim and their defences are, inter-alia, as follows namely:-

3 (a) For invoices no WTS 0, WTS 0, WTS 0, WTS 0, WTS 00 and WTS 01 as appeared in Paragraph of the Statement of Claim, the Defendant contends that they have never received the said invoices and neither did the Defendant company ever issued any purchase orders in relation to the goods as mentioned in the said invoices; (b) Further, the Defendant contends neither they had received any goods as indicated in the said invoices nor acknowledged any delivery orders in relation to the goods mentioned in the said invoices that were purportedly delivered to the Project site; 1 (c) Paragraph of the Statement of Claim which indicated that for invoice WTS 01 dated.0.0 the Defendant owed the Plaintiff in the purported sum of RM,01.0 being the supply of steel bar described as Bar T is exorbitant, wrong and excessive in that the finding of the final summary valuation conducted by the Defendant s Quantity Surveyor during the joint site inspection on aforesaid indicated only the sum of RM,. representing the actual material on site of T bar that actually had been supplied to the Defendant by the Plaintiff;

4 (d) lternatively, the Defendant denies that it has bought or ordered goods from the Plaintiff in relation to invoices no WTS 0, WTS, WTS 0, WTS 0, WTS 00 and WTS 01 as appeared in Paragraph of the Statement of Claim or at all and avers that none of the goods mentioned in the said invoices were ever delivered by the Plaintiff to the Defendant at their request or at all; and (e) Further and/or alternatively, the Plaintiff was not ready and willing to deliver the goods in relation to invoices no WTS 0, WTS, WTS 0, WTS 0, WTS 00 and WTS 01 as appeared in Paragraph of the Statement of Claim to the Defendant on the day fixed for delivery for there were no agreement express or implied as to the prices to be paid by the Defendant for the said goods and the Defendant denies that the prices claimed are fair or reasonable. 1 0 There was also the issue that the Plaintiff s claim had already been set off by the Third Party against the Defendant s progress claim no. which is one of the issues in dispute between the Third Party and the Defendant in the arbitral hearing. s the arbitrator had awarded the Defendant s progress claim no. in full without taking into consideration issue of set off therefore, strictly on a without prejudice basis the

5 Defendant had conceded on this issue of set off in this action with the proviso that the Third Party does not appeal against the award on this issue of set off. s of today, I have no information what is the status of the arbitral proceedings after its conclusion as parties have not updated me on this matter and I will therefore not touch on this issue of set off at all, further as the Defendant had conceded on this point. Burden of Proof It is trite law that for civil cases, the burden of proof that rests upon the Plaintiff may be discharged on a balance of probabilities ie, that the Plaintiff s version is probably true. 1 s there are conflicting versions of the story between the Plaintiff and Defendant, it is urged upon this Court to adopt the safer approach as pointed out by His Lordship Low Hop Bing J in Central Cables Bhd v Tan Kim Lien [00] MLRH 0 where his Lordship referred the dictum as set out by Chang Min Tat FJ (as he then was) in the Federal Court case of Tindok Besar Estate Sdn Bhd v Tinjar Co. () MLJ where his Lordship stated as follow:- 0

6 Nevertheless the learned trial judge expressed himself to be completely satisfied with the veracity of the respondent s witnesses and their evidence. He purported to come to certain findings of fact on the oral evidence but did not notice or consider that the respondent s oral evidence openly clashed with its contemporaneous documentary evidence. For myself, I would with respect feel somewhat safer to refer to and rely on the acts and deeds of a witness which are contemporaneous with the event and to draw the reasonable inferences from them than to believe his subsequent recollection or version of it, particularly if he is a witness with a purpose of his own to serve and if it did not account for the statements in his documents and writings 1 0 Issue: Whether the Defendant had ordered the said Goods. It is the Defendant s submission that in CFB luminium Extrusion Sdn Bhd v Lim Soon Seng (0) MLRHU 1 the Court had held that the burden of proof on the part of the seller is commonly by way of producing in court the purchase order, delivery order and the invoice for the goods. His Lordship referred these documents as the key documents and that according to His Lordship, it is necessary for the seller i.e. the Plaintiff in this case to produce the key documents that is to say the purchase order, invoices and delivery orders otherwise, other

7 cogent associated documents or reasonable oral explanation of their non production in lieu must be produced in order to succeed in her claim. It was the Defendant s case that the Defendant had through DW1 and DW adduced evidence to the effect that whenever their construction team in Bintulu required any building materials for the Bintulu Project, where the Plaintiff is the supplier and the Third Party is the Employer, the Defendant s construction team in Bintulu would inform the Defendant s purchaser DW1. ccording to DW1, upon receiving the request, she would prepare the Purchase Order for the requisite building materials. The Defendant submitted that DW1 s evidence was corroborated by DW who is the director of the Defendant who also testified that after DW1 had prepared the Purchase Order, she must cause the Purchase Order to be authorized by the Defendant s requisite departments for endorsement/approval and lastly approved by the Defendant s Managing Director. Thereafter, DW1 would fax the Purchase Order to the Plaintiff s office. 1 0 DW further testified that it is compulsory for DW1 to issue a Purchase Order for this is the Defendant s policy so as to let the Plaintiff know that she could only supply goods to the project site when there was a valid Purchase Order issued in order to avoid any persons who the Defendant do not have dealings with to simply

8 order goods by using the Defendant s name without the knowledge of the Defendant s management so as to protect the interest of the Defendant. ccording to DW the arrangement of ordering goods that must be preceded by the Purchase Order had been conveyed to the Plaintiff. This is what DW testified: Q Generally, what are the Defendant s company procedures in relation to the ordering of building materials for this particular project? Whenever the construction team in Bintulu required certain building materials for the project, this information would be conveyed to our purchaser at our head office in Kuching. Q What is next? Ms Hon is the person in charged for the purchasing would issue the Purchase Order by listing down the requisite building materials that were required, its unit, quantity, rate and the total amount for the goods ordered. Q fter she issued the Purchase Order what happened?

9 Ms Hon would need to have the Purchase Order to be authorized by the finance department then verified by the operation department. Lastly, it must be approved by the Managing Director. Q What happened to the Purchase Order after it was approved by the Managing Director? Ms Hon would then fax the Purchase Order to the supplier in Bintulu who is the Plaintiff in this case. Q Is it compulsory for Ms Hon to issue the Purchase Order for the purpose of ordering the building materials for this particular project? Yes. Q Why is that? It is the company policy. 1 0 Q You said this is Defendant company policy, was this arrangement ie the necessity of issuing the Purchase Order been conveyed to the Plaintiff?

10 Yes. Q Why does the Defendant impose this policy? So as to let the Plaintiff knows that she could only supply goods to the project site when there was a valid Purchase Order been issued to avoid any persons who we do not have dealing with to simply ordering goods by using the Defendant s name without the knowledge of the management so as to protect the interest of the Defendant. ccording to DW1, it is compulsory for her to issue the Purchase Order whenever the Defendant ordered goods from the Plaintiff. This is her evidence: Q Is it compulsory for you to issue the Purchase Order for the purpose of ordering the building materials for this particular project? Yes. Q Why is that? 1 0 Ever since I joined the company I was told this is the practice of the Defendant company that whenever the company required to order the goods, it is compulsory to issue a purchase order which needs to be

11 authorized, verified and approved by the relevant personnel of the company. It was the Defendant s submission that it is inescapable conclusion that the Plaintiff had admitted the fact that the Defendant did issue the Purchase Order for the purpose of ordering the goods from the Plaintiff but not all the time which is totally in conflict to the evidence adduced by DW1 and DW. Thus, the Defendant submits that, on a balance of probability, it is more probable to believe the Defendant s version of story which is fortified by the fact that the Defendant had produced the relevant ten Purchase Orders marked as Ex-D1 to D as found at pages-0 Bundle D. It is the Defendant s case they were only responsible to pay the Plaintiff on the invoices strictly based on the Purchase Orders issued which are consistent with the terms as indicated in the said Purchase Orders where the Defendant alleged the terms stipulated that:- 1 0 Note: ll invoices must substantial with proper Purchase Order Ref. nd copy of DO. We do not responsible late payment due to insufficient document

12 So, what the Defendant is saying is that the Purchase order had expressly imposed a condition that all invoices must be substantiated with proper Purchase Order and also copy of Delivery Order failing which the Defendant will not be responsible for any late payment. nything short of these two documents would disentitle the Plaintiff to payment. The Defendant submits that the Plaintiff cannot now say that not all the time the Defendant had issued the Purchase Order where it is inescapable conclusion that the Defendant did issue the Purchase Order otherwise the Defendant would not be able to produce those Purchase Order tendered and marked as exhibits Ex-D1 Ex-D considering the Plaintiff did not even bother to produce a single Purchase Order for this trial. ccording to DW1, the Defendant only ordered goods from the Plaintiff based on the Purchase Order issued. In this regard, DW1 further testified those sums as indicated in the invoices that tallied with the Purchase Order issued totalled the sum of RM,1., (the admitted amount) which is as follows:- (i) For Purchase Order marked as Ex-D1 & Ex-D, the relevant invoice in the sum of RM,1.00 is marked as Ex-P1; 1

13 (ii) For Purchase Order marked as Ex-D & Ex-D, the relevant invoices in the sum of RM,0.00 and RM,0.00 are marked as Ex-P & Ex-P; (iii) For Purchase Order marked as Ex-D, the relevant invoice in the sum of RM,.00 is marked as Ex-P; (iv) For Purchase Order marked as Ex-D, the relevant invoice in the sum of RM,0.00 is marked as Ex-P; (v) For Purchase Order marked as Ex-D, the relevant invoice in the sum of RM,.00 is marked as Ex-P; (vi) For Purchase Order marked as Ex-D, the relevant invoice in the sum of RM,. is marked as Ex-P; and (vii) For Purchase Order marked as Ex-D & Ex-D, the relevant invoice in the sum of RM,. is marked as Ex-P. 1 Of relevance, the testimony of DW1 is as follows: 0

14 Q Why you said that? Because the Defendant only ordered goods from the Plaintiff based on the Purchase Order issued by me as appeared on pages -0 of Defendant's Bundle Documents. Many of the Plaintiff s invoices as shown in the Plaintiff s Bundle of Documents not only did not mention the Purchase Order numbers but also did not base on the Purchase Order issued by me. Q Can you tell the court for the Purchase Order on pages -0 of the Defendant's Bundle Documents, the Plaintiff had issued which invoices for these Purchase Order in the Defendant's Bundle Documents? For Purchase Order on pages and Defendant's Bundle Documents, the Plaintiff had issued INV-WTS/BTU/0-RM1.00. Q1 For Purchase Order on pages and Defendant's Bundle Documents? 1 The Plaintiff had issued invoices INV-WTS/BTU/0.-RM,0.00 and INV-WTS/BTU/00.-RM,

15 Q0 For Purchase Order on page Defendant's Bundle Documents? The Plaintiff had issued INV-WTS/BTU/0.-RM,.00. Q1 For Purchase Order on page Defendant's Bundle Documents? The Plaintiff had issued INV-WTS/BTU/0-RM,0.00. Q For Purchase Order on page Defendant's Bundle Documents? The Plaintiff had issued INV-WTS/BTU/0-RM,.00. Q For Purchase Order on page Defendant's Bundle Documents? The Plaintiff had issued INV-WTS/BTU/0-RM,.. Q For Purchase Order on pages 1-0 Defendant's Bundle Documents? The Plaintiff had issued INV-WTS/BTU/00-RM,.. Q So, the Plaintiff had issued how many invoices to the Defendant based on these Purchase Orders issued by you? Eight. 1 0 Q What is the total sum of these eight invoices?

16 RM,1.. Defendant submits that PW1 did not produce any Purchase Order issued by the Defendant to substantiate her allegation that she had at the request of the Defendant supplied goods to the Defendant as pleaded on Paragraph of the Statement of Claim. In order for the Plaintiff to justify the fact that Defendant had requested her to supply the goods, it is incumbent upon the Plaintiff to produce the Purchase Order or to adduce any cogent evidence in the absence of the Purchase Order. But this was not done (see: CFB luminium Extrusion Sdn Bhd v Lim Soon Seng (0) MLRHU 1). Thus the Defendant submits that they are only liable to the Plaintiff in the sum of RM,1.. 1 The Plaintiff had tendered a Statement of ccount (Exh P) and relied upon the invoices and Delivery Orders at pages to of Bundle B (Exh P respectively) and Exh P0 to P to confirm that the goods and services were supplied to the Defendant. Exh contains the list of Invoices and the Delivery Orders that were issued by the Plaintiff to the Defendant for the goods and services supplied. The evidence showed that all the invoices and Delivery Orders at pages to of Bundle B (exhibits P-) and Exhibit P0 to P of Bundle B are

17 chopped with the Defendant s company chop and signed by the Defendant s representative namely one Kevin Tan. I also note that that the Defendant had never pleaded in their pleading that the invoices or Delivery Orders are fake nor was no signature expert ever called to testify or verify on the genuine of the signature of the Plaintiff. Therefore, I disallow this line of defence as this line of defence was never pleaded in the Defence. I also find that the Defendant s agents or representatives had stamped and signed the acceptance of the delivery on every corresponding Invoices and Delivery Orders confirming that the goods was received by the Defendant. Therefore, I must reject the Defendant s contention that they did not receive the goods and services. 1 0 Despite the Defendant setting out and explaining their company s policy when ordering and/or purchasing goods and services from the Plaintiff (through the evidence of DW1), the Defendant s representative namely Kevin Tan has ordered the goods and accepted the goods by signing and acknowledging the goods was in good order and condition. The authority of Kevin Tan is undisputed by the Defendant. In fact, DW has while being cross-examined, agreed that the said

18 Kevin Tan was given full authority to act on behalf for the Defendant including ordering goods. t page lines - of NOP, DW testified: Q: He has the full power at the site including attending meeting, ordering : Yes. goods and arranging workers schedule. Do you agree? Further, PW1 had testified at Q& and of PW1 s witness statement (PWS1) that the Defendant s agent Kevin Tan, would simply make a call to make an order and signed on the Invoice and Delivery Order once the construction materials and services are received Q: Can you tell this Court how does the Defendant place orders of construction materials and services from your firm? : Sometime they would issue a Purchase Order and other time they will simply give us a call to make order.. Q: Is it a practice for the Defendant to always issue a purchase order?

19 : No. The Defendant did not always issue a Purchase order. Most of the time their Project Manager by the name of Kevin Tan will make an order and subsequently signed on the delivery order and invoices upon receiving the construction materials and services supplied. The testimony of PW1 in regards to the method of ordering was not crossed or disputed at all by the Defendant s counsel and as such must be accepted as truth. 1 0 The invoices and delivery notes are exhibited in Bundle B at pages to of Bundle B (exhibits P-) and Exhibit P0 to P have clearly showed that the Defendant had accepted and acknowledged the said goods and services. Throughout the trial, the Defendant had not shown that the goods or services were not received by them or that the said Kevin Tan is not their representative. On a balance of probability, I find that the said goods or services were indeed sent and delivered to the Defendant and the Defendant had duly accepted the same. In regards to the contentions by the Defendant during the trial that it has not requested the Plaintiff to supply goods and services for invoices and delivery orders that do not contain Purchase Order numbers and that the invoices are fake invoices, I must say that I have perused the Statement of Defence of the Defendant, and despite 1

20 being a lengthy one, these contentions or allegations of the Defendant as raised in the trial were never pleaded at all. It was never pleaded that only DW1 can make the orders for the goods. The evidence of DW (as shown above) showed otherwise, particularly the fact that Kevin Tan could also order goods. In Boustead Trading () Sdn Bhd v rab Malaysian Bank Bhd [] MLJ 1 where the learned Judge, the then Gopal Sri Ram JC stated that:- If a court comes to the conclusion that no injustice will be occasioned by permitting a party to raise estoppels as an issue, then, it may be justified in departing from the salutary rule contained in such decisions as Haji Mohamed Dom v Sakiman [] MLJ and njalai mmal & nor v bdul Kareem [] 1 MLJ that imposes upon a judge the duty to strictly decide a case upon and only upon the issues raised in the pleadings and not upon an unpleaded case. Nevertheless, courts must ensure that the occasions upon which such a departure may be permitted are rare. For otherwise the rule which declares that a party is bound by its pleadings will be rendered meaningless 1 0 Further, the Defendant contended that they did not order the goods and services if they did not contain Purchase Order numbers. The Defendant has exhibited several 0

21 invoices and delivery orders (without any Purchase Order numbers) in their bundle of document. They were marked as Exhibits D1 to D, D1-D, D-D, D, D-D (of bundle D) which DW has stated that they were received by the Defendant through their site manager. To me, the inclusion of the invoices and delivery orders (without any Purchase Order numbers) in the Defendant s bundle of document and the fact that those invoices and delivery orders are in the possession of the Defendant is an unqualified admission by the Defendant that those transactions existed. Otherwise the Invoices and Delivery Orders (without Purchase Order numbers) would not be in their possession in the first place. Furthermore, DW1 confirmed that she has seen those invoices and delivery orders (without any Purchase Order numbers) before (see lines to at page of NOP) when cross-examined. 1 0 Therefore, on a balance of probability, I find that the Defendant had ordered goods and services from the Plaintiff even-though there are no Purchase Orders. Further, it is improbable that the Defendant did not request the Plaintiff to supply goods and services if it doesn t contain Purchase Order number. This can be seen in exhibits D1, D, D where all three invoices exhibited by the Defendant were chopped paid by the Defendant and signed underneath by DW before the payment was canceled (See lines to at page of NOP and lines 1 to at page of 1

22 NOP). Such act in authorizing payment is an admission on the part of the Defendant of the debt and the contents of the Invoices. Further, by approving payment to the Plaintiff, such act on the part of the Defendant is an admission that the goods were in order. This act negates the Defendant s contention that they did not order from the Plaintiff if the Invoices do not contain Purchase Order numbers. The Defendant has ordered the goods and services in the Invoices and Delivery Orders from the Plaintiff as they have acknowledged receipt of the goods and services from the Defendant without objection as in ordinary course of business. The Defendant s representative namely Kevin Tan would not have chopped and signed on the Invoices and Delivery Orders if the goods and services contained therein were not delivered. The Defendant s dissatisfaction with their ordering system or particular agent is no defence to the Plaintiff s claim for the price of the goods supplied which has been accepted by the Defendant. Whether only DW1 can make the orders or that there was Purchase Order numbers or not is the business of the Defendant s internal management and should not be a defence to the Plaintiff s claim. 1 0 Therefore, on a balance of probability, I find that the Defendant had ordered the goods and services from the Plaintiff and the same have been sent and delivered to the Defendant.

23 Issue: Failure of the Plaintiff To Call The Maker of the Invoices, Delivery Order & Statement of ccount PW1 testified that she did not sign some of the invoices and delivery orders as contained in Bundle B. ccording to PW1, those invoices and delivery orders that were signed by her were at pages, -1, -. Whereas her staffs prepared and signed those invoices and delivery orders at pages, -, -. In this regard, PW1 also admitted both her staffs by the name of Ivy and Joey had prepared the invoices and delivery orders. However, the statement of account was prepared by Ivy only (see: Page lines 1-, Page line 1- NOP). 1 0 The invoices prepared and signed by the Plaintiff s staffs were as follows:- Invoice No.INV-WTS/BTU/00; Invoice No.INV-WTS/BTU/0; Invoice No.INV-WTS/BTU/00; Invoice No.INV-WTS/BTU/0; Invoice No.INV-WTS/BTU/0; Invoice No.INV-WTS/BTU/0; Invoice No.INV-WTS/BTU/0; Invoice No.INV-WTS/BTU/0; and

24 Invoice No.INV-WTS/BTU/ The delivery orders prepared and signed by the Plaintiff s staffs were:- Delivery Order No.WTS-DO/0/0; Delivery Order No.WTS-DO/0/0; Delivery Order No.WTS-DO/0/01; Delivery Order No.WTS-DO/0/0; Delivery Order No.WTS-DO/0/0; Delivery Order No.WTS-DO/0/0; Delivery Order No.WTS-DO/0/00; Delivery Order No.WTS-DO/0/0; Delivery Order No.WTS-DO/0/0; Delivery Order No.WTS-DO/0/0; Delivery Order No.WTS-DO/0/0; Delivery Order No.WTS-DO/0/0; Delivery Order No.WTS-DO/0/0; Delivery Order No.WTS-DO/0/0; Delivery Order No.WTS-DO/0/0; Delivery Order No.WTS-DO/0/01; Delivery Order No.WTS-DO/0/00;

25 Delivery Order No.WTS-DO/0/01; Delivery Order No.WTS-DO/0/0; Delivery Order No.WTS-DO/0/0; Delivery Order No.WTS-DO/0/001; Delivery Order No.WTS-DO/0/00; Delivery Order No.WTS-DO/0/00; Delivery Order No.WTS-DO/0/00; Delivery Order No.WTS-DO/0/00; Delivery Order No.WTS-DO/0/00; Delivery Order No.WTS-DO/0/00; Delivery Order No.WTS-DO/0/00; Delivery Order No.WTS-DO/0/00; Delivery Order No.WTS-DO/0/0; Delivery Order No.WTS-DO/0/0; Delivery Order No.WTS-DO/0/0; Delivery Order No.WTS-DO/0/0; Delivery Order No.WTS-DO/0/0; and Delivery Order No.WTS-DO/0/0. 1

26 PW1 also confirmed that the Statement of ccount marked as Exh-P1 was prepared by her staff under her instruction. The Defendant submits that the Plaintiff had attempted to circumvent the calling of the staffs who are the makers of the documents by saying that the staffs were acting under her instruction and the staffs were no longer working with the Plaintiff anymore. PW1 testified that she has the knowledge of the staffs who had prepared and signed the invoices, delivery orders and statement of account. However, the Defendant submits that the fact remains the Plaintiff did not adduce any evidence further than that in particular as to the fact that the makers are beyond the seas and their exact whereabouts are unknown and that unreasonable delay and expense would be incurred in attempting to procure the attendance of the staffs as witnesses. No such evidence had been adduced by PW1 to establish the efforts taken to locate the staffs so as to fall within the exception to the rule under the relevant section of the Evidence ct. ugustine Paul in his book Evidence Practice and Procedure Second Edition at page 0 had commented that:- 1 0 it is a general rule of evidence that the best evidence available must be adduced. This section and section are an exception to the general rule and allow the reception of hearsay as evidence... per Seah FJ in Leong

27 Hong Khie v Public Prosecutor and Tan Gong Wai v Public Prosecutor () MLJ 0, 0 (FC): The general rule is that hearsay evidence is not admissible as proof of a fact which has been stated by a third person. This rule has been long established as a fundamental principle of the law of evidence... In our opinion, another reason is the danger that hearsay evidence may be concocted, fabricated and tailored to suit the witness s testimony. Notwithstanding the general rule certain exceptions have been recognised upon the ground of necessity or convenience. In Malaysia, these exceptions are set out in Section of the Evidence ct 0 Defendant submits that since the Plaintiff did not call the makers to prove the contents of those invoices, delivery orders and statement of account therefore, no reliance and weight should be put on them by the court. 1 0 In this case, the authenticity and content of the exhibits P to P1 and exhibits P to P, was never challenged during the trial. In fact the authenticity and contents of the exhibits are accepted by the Defendant except ID (See: lines -

28 at page 1, lines 1- at page of NOP). To me, once the contents of the document are admitted, it is no longer necessary to prove the contents of the document to establish the truth by calling the maker. In fact, when objection was raised I had in fact made a ruling as seen at lines to of page of the NOP. Furthermore, the Plaintiff had tendered the original documents as proof thereof. The production of the original documents should attach the greater weight of evidence. In any event, the Plaintiff has knowledge of the documents and the relevant exhibits were prepared under her instructions. For the reasons as stated, I find that the documents (the Invoices, Delivery Orders and Statement of ccount) are properly admitted. Issue of Cost The Plaintiff had submitted on costs in their Submission, likewise the Defendant has rebutted on the amounts of costs as claimed by the Plaintiff. 1 0 The Plaintiff submitted that the trial had stretched for days with 1 witness for the Plaintiff and witnesses for the Defendant. The Plaintiff referred to Order Rule (1) Rules of Court 0 which provides for the Scale of Costs for Trial in the Subordinate Courts:-

29 Judgment Sum Suing/Defending dvocacy Exceeds RM0,000 but not RM,000 RM,.00 RM,0.00 For the reasons stated above, Plaintiff submitted that the sum of RM,.00 (RM,.00 + RM,0.00) is the getting-up amount sought. Plaintiff refers to Order Rule ROC 0 and averred that the counsel for the Plaintiff has attended the court on 0.0.0, ,.0.0,.0.0,.0.0,.0.0,.0.0, 0.0.0, 0.0.0, 0.0.0,.0.0,.0.0 and.0.0. Defendant submitted that two days before the trial commenced on th June, 0, the Plaintiff had filed a Notice of pplication dated in Enclosure which was rightly dismissed by this Court on.0.0 wherein the Plaintiff being dissatisfied with the said decision, had filed an appeal to the High Court in Civil ppeal No. BTU- -1/-0 which was subsequently discontinued by the Plaintiff on Therefore the Plaintiff submitted that the court attendance cost shall be RM 1, To me, this is a fair and reasonable sum. 1 0 Plaintiff submitted that Plaintiff s witness had to travel from Bintulu to Miri to testify on the Plaintiff s behalf. Defendant submitted that the issue as to the

30 Plaintiff s witness having to travel from Bintulu to Miri is not a relevant factor that this court would take into consideration in awarding the costs considering this is the consensus jointly reached by the court and the respective Counsels to have the matter tried in Miri instead of Bintulu. On this issue, I agree with learned Counsel for the Defendant. The Plaintiff further submitted that the Defendant has make an application in enclosure pursuant to Order and/or Order rules, and, Order r1(1)(a), and Order r 1 ROC 0 by the Defendant to dispose off the Plaintiff s claim based on points of law which was dismissed by this Court. The Plaintiff submitted that the Plaintiff has incurred costs and time to defend the matter. The Plaintiff asked for cost to be in the sum of RM0, (amount of costs claimed in Sessions Court). Having considered all factors in cluding the amount claimed regarding costs, I feel that the sum of RM, should be fair and reasonable

31 Conclusion. On a balance of probability, I find that the Plaiontiff has proven its case against the Defendant and I enter judgment for the Plaintiff in the sum of RM,. as at 0 June 0, together with interest on the sum of RM,. at the rate of % per annum from the 0 June 0 until full and final settlement and costs of RM, Dated the th September 0. (Steve Ritikos) Sessions Court Judge Miri For the Plaintiff: Mr Eric Lau Messrs David llan, Sagah & Teng dvocates Bintulu 1 For the Defendant: Mr nthony Ngeh Messrs Ngeh Ling dvocates Kuching 0 1