DALAM MAHKAMAH TINGGI MALAYA DI SHAH ALAM DALAM NEGERI SELANGOR DARUL EHSAN, MALAYSIA (DALAM BIDANG KUASA RAYUAN) RAYUAN SIVIL NO: BA-12B-164-09/2016 ANTARA ZI PRODUCTIONS SDN. BHD. (NO PENDAFTARAN SYARIKAT: 701484-U)...PERAYU DAN SACC CONVEC SDN. BHD. (NO PENDAFTARAN SYARIKAT: 861880-W) RESPONDEN (DALAM MAHKAMAH SYESEN DI SHAH ALAM DALAM NEGERI SELANGOR DARUL EHSAN, MALAYSIA GUAMAN NO: B52-43-03/2015) ANTARA ZI PRODUCTIONS SDN. BHD. (NO PENDAFTARAN SYARIKAT: 701484-U) PLAINTIF DAN SACC CONVEC SDN. BHD. (NO PENDAFTARAN SYARIKAT: 861880-W) DEFENDAN 1
GROUNDS OF JUDGMENT Introduction [1] This is an appeal against the decision of the Session Judge which dismissed the Plaintiff s claim on 7.9.2016. The parties in this appeal are the Appellant who was the Plaintiff and the Respondent who was the Defendant. [2] For ease of reference, in this judgment, the parties will be referred to as they were in the Sessions Court. Background Facts [3] The dispute before me is between the Plaintiff, an event management company and the Defendant who operates and manages the convention centre in Shah Alam regarding two events to be organized by the Defendant for ASTRO. The relevant factual background based on the written submission of the counsels may be stated as follows: 2
(a) The Plaintiff is a company incorporated under the Companies Act 1965 and was registered on 4.7.2005 is owned by two Directors and carries a business of event management, advertising and promotional services. (b) The Defendant is a company established under the Companies Act 1965 was registered on 24 June 2009 and is wholly owned by Perbadanan Kemajuan Negeri Selangor (PKNS). The Defendant has four Directors and its conduct of business is operating and managing the Shah Alam Convention Centre. (c) Plaintiff pleaded that the cause of action against Defendant is for breach of contract of 5.9.2011. (d) Plaintiff claimed that by a Letter of Award of 5.9.2011, the Defendant appointed the Plaintiff as an Event Management Panel for SACC Sdn Bhd for a Business Associates Programme (BAP). 3
(e) The Letter of Award signed by the Chief Executive Officer of the Defendant, Dato Zulkifli Bin Mohamad was received by the Plaintiff s Director Datuk Zulkifli Bin Ishak on 12.9.2011 where the Plaintiff is appointed as a member of BAP for a period of two years from 5 September 2011 until 30 September 2013. (f) The Plaintiff claimed that both parties agreed that until a formal contract is signed, the said Letter of Award will be the valid and binding document on both parties. (g) The Plaintiff claimed that based on the appointment of Plaintiff as BAP member, the Defendant had directed the Plaintiff to manage the two events to be organised by the Defendant: (i) (ii) Pementasan Dewa Kencana ; and Maharaja Lawak Mega (h) The Plaintiff claimed that the Defendant had agreed without condition to pay all expenses incurred by the Plaintiff in managing the two events. 4
(i) The Plaintiff claimed that the theatre performance of Dewa Kencana was held on 23.12.2011 until 25.12.2011 where Plaintiff was the event manager appointed to carry out the tasks successfully in coordinating, security control and supervising. (j) The Plaintiff submitted the invoice for the management fee dated 26.12.2011 amounting to RM45,000.00 to the Defendant. (k) The Plaintiff claimed it had successfully managed another event Maharaja Lawak from October 2011 until December 2011 for the Defendant where the Plaintiff was acting as the Event Manager and had carried out the tasks successfully. The Plaintiff then submitted 5 invoices for the expenses incurred and the management fee, altogether totaled at RM238,000.00 to the Defendant. (l) The Plaintiff claimed that the Defendant had received the payment RM500,000.00 from Astro on 5.4.2012 and all suppliers including Plaintiff, claimed to be paid upon the Selangor State Government s EXCO s approval. 5
(m) The Plaintiff claimed that Yang Berhormat Rodziah Binti Ismail who is an EXCO member of the Selangor State Government, the Chairman of Welfare, Woman Affairs, Science, Technology and Innovation had asked the Defendant to pay the contractor, the event manager that is the Plaintiff in organizing the Program Maharaja Lawak Mega Astro that was aired on 28.10.2011 considering that it had been organized well and under the responsibility of the Defendant. (n) The Plaintiff claimed that the Defendant had breached the Letter of Award when the Defendant failed, refused and/or negligent to pay the expenses incurred and the management fee amounting to RM283,000.00. (o) Plaintiff claimed that it suffered loss of RM283,000.00 due to Defendant s breach to pay for the management and the expenses incurred on the two events that is, RM45,000 for the management fee of Dewa Kencana and RM238,000 for the management fee and expenses incurred, and prayed for general damages and exemplary damages. The Plaintiff served 6
one Letter of Demand dated 23.1.2014 to the Defendant demanding for the RM283,000.00 as special damages. (p) The Session Judge dismissed all Plaintiff s claims for Special Damages of RM283,000.00, General Damages, Exemplary Damages, interests and cost. (q) Being dissatisfied with the said decision, the Plaintiff appealed to this Court. Session Court s Decision [4] The Session Judge s decision is reproduced here as follows: DAPATAN MAHKAMAH Berdasarkan keterangan saksi Plaintiff dan Defendan, dokumen yang dikemukakan dan hujahan pihak. Tuntutan Plaintif adalah berdasarkan i) Surat Panel Business Associate Program bertarikh 5.9.2011 (Surat Anugerah/BAP) 7
ii) Lima Invois bertarikh 18.12.2011 dan satu invois bertarikh 28.12.2011 Kausa tindakan Plaintif dalam kes ini adalah bahawa Defendan mungkir surat Anugerah dengan Plaintif bila gagal membayar perbelanjaan dan yuran pengurusan yang dilakukan Plaintif dalam dua acara iaitu Pementasan Dewa Kencana dan Maharaja Lawak Mega. Surat BAP tersebut bukan dikeluarkan oleh Defendan, sebaliknya merupakan surat dari SACC (Pusat Konvensyen Shah Alam). Surat BAP adalah surat bersyarat di mana panel yang dilantik hendaklah menandatangani perjanjian kontrak dalam tempoh 30 hari dari tarikh lantikan. Dalam kes ini tiada apa-apa kontrak antara Plaintif dan Defendan. Keterangan SP1, Dato Zulkifli Mohamad, Ketua Pegawai Eksekutif Defendan. Beliau akui bahawa tiada surat tawaran perkhidmatan diberi kepada Plaintif. Pihak SACC sebagai event manager diminta memberikan cadangan syarikat yang berkebolehan dan berkeupayaan membantu melaksanakan projek tersebut. Di bawah Business Associate Programme (BAP) syarikat Plaintif didapati mempunyai kebolehan dalam bidang kerja yang diperlukan. Sebab itu Plaintif dicadangkan diberi projek ini. Saksi SP2 sendiri mengakui, Letter of Award (BAP) di mukasurat 13 ikatan Dokumen itu bukan kontrak sebaliknya surat lantikan sahaja. Saksi SP3, seorang akauntan pula menyatakan bahawa beliau menyediakan invois-invois kepada SACC berdasarkan arahan bertulis dari majikannya tanpa apa-apa dokumen sokongan. Beliau sendiri tidak pasti invois yang dibuat untuk tujuan apa dan hanya berdasarkan apa yang dimaklumkan oleh majikan kepadanya sahaja. Mahkamah turut dimaklumkan oleh saksi SP1 bahawa sesuatu kontrak pembekalan barangan dan perkhidmatan perlu wujud melalui dokumentasi dan perlu dapatkan kelulusan exco SACC kerana tanpa kelulusan, pembayaran tidak boleh dilakukan. 8
Dalam kes ini, pelantikan Plaintif untuk menguruskan kedua-dua program yang dituntut tidak mendapat kelulusan dari EXCO Defendan. Fakta ini dijelaskan oleh SP1 dalam keterangan beliau semasa disoalbalas. Kertas kerja yang mencadangkan kelulusan pembayaran kepada Plaintif yang dikemukakan kepada Bahagian Kewangan Defendan bersama invois didapati tidak mempunyai tandatangan kelulusan CEO.. Atas sebab itu invois yang dihantar itu diterima tanpa pengakuan liability. Mahkamah juga mendapati kertas kerja tersebut jika pun sahih adalah bertarikh 30.12.2011 manakala invois-invois yang dihantar adalah bertarikh 18.12.2011, 26.11.2011 dan 28.11.2011. Timbul anggapan pada Mahkamah bahawa kertas kerja itu hanya wujud terkemudian untuk menyokong invois bagi mendapatkan bayaran dan oleh itu tidak boleh diterima sebagai bukti perkhidmatan telah diberikan oleh Plaintif kepada Defendan. Secara keseluruhannya, atas imbangan kebarangkalian, Mahkamah dapati Plaintif gagal membuktikan tuntutannya terhadap Defendan. Tidak wujud sebarang kontrak antara Plaintif dan Defendan untuk Defendan menguruskan kedua program Pementasan Dewa Kencana dan Maharaja Lawak Mega. Tidak ada sebarang Purchase Order atau Surat Lantikan atau Delivery of Service melibatkan Defendan dalam kes ini. Kertas kerja yang dikemukakan adalah pemikiran semula selepas invois disediakan dan ianya tidak dibuktikan mendapat kelulusan dari pihak Defendan sendiri. Atas alasan itu, adalah wajar untuk Mahkamah menolak tuntutan laintif dengan kos mengikut skala. 9
Plaintiff s Submission [5] The learned counsel for the Plaintiff advanced a number of grounds that can be manifestly summarized as follows: (a) The Plaintiff s main contention is that the Defendant had breached the contract where the Plaintiff had carried out its services for the two programmes and submitted invoices for payment but Defendant refused to pay the Plaintiff for the reason the Plaintiff was not appointed according to the normal process under SACC; (b) the Session Judge had erred in facts and law to dismiss Plaintiff s claim against the Defendant and submitted that this Court should intervene with the decision of the trial court based on a number of decisions of the Federal Court, the case of Gan Yook Chin v Lee Ing Chin [2004] 4 CLJ 309; UEM Group Bhd v Genisys Integrated Engineers Pte Ltd [2010] 9 CLJ 785; Dream Property Sdn Bhd v Atlas Housing Sdn Bhd [2015] 2 CLJ 453; 10
(c) the Session Judge had erred in facts and law in deciding that the Plaintiff was not appointed to manage the two programmes and in deciding that the Plaintiff as a member of Defendant s BAP Panel, was not offered by the Defendant to manage the two programmes on behalf of the Defendant for the management fee of RM280,000.00. (d) the Session Judge failed to consider the witness statement PW- 1 the Chief Executive Officer of the Defendant that the Plaintiff managed the two programmes on the Defendant s request; (e) the Plaintiff was at all material time managed the two events on Defendant s request and that the Defendant had promised to pay all the management fees due. The Plaintiff s counsel referred the Court to the Plaintiff s witness statement from the record: S : Untuk soalan daripada rakan bijaksana saya, ada tak surat tawaran perkhidmatan yang telah diberikan kepada plaintif dan Dato telah kata surat tawaran tak ada yang adanya company profile. So apabila beliau telah bertanyakan bahawa 11
adakah terdapat sebarang surat mengenai khususnya kepada barang yang ditawarkan Dato kata taka da. Boleh Dato terangkan bagaimana plaintif telah diminta untuk melakukan projek ini tanpa satu surat tawaran? J : Bila projek ini dilaksanakan di Royal Theatre Shah Alam ia sebenarnya ialah untuk menguji lari juga satu asset kerajaan negeri yang tak digunakan. Oleh kerana itu pihak SACC ini sebenarnya adalah event manager yang mana diminta untuk memberikan cadangan syarikat-syarikat yang mana boleh dan mempunyai keupayaan untuk membantu dari segi pelaksanaan projek. Jadi kita lihat dari segi program business associate program yang kita ada terdapat syarikat plaintif ini yang mempunyai kebolehan dalam bidang kerja yang kita perlukan. Oleh kerana itu kita cadangkan supaya syarikat ini diberikan peluang untuk projek ini. (f) the Plaintiff submitted the invoices for the scope of works carried out by the Plaintiff, invoices No. ZIP 0047/12/2011, No. ZIP 0048/12/2011, No. ZIP 0049/12/2011, No. ZIP 0052/12/2011, No. ZIP 0053/12/2011, No. ZIP 0054/12/2011 and No. ZIP 0058/12/2011 amounting to RM280,000.00, sent to the Defendant on 28.12.2011. Defendant s failure in paying the Plaintiff amounted to a breach of contract. 12
(g) Plaintiff submitted that there was a working paper prepared which had been approved by the Defendant for payment to be made to the Plaintiff by the Defendant. (h) It was argued by the Plaintiff that the Defendant had been estopped from denying the invoices or objecting to any money owing to the Plaintiff as the Defendant did not object to the invoices submitted which was to be communicated on any discrepancies within seven days of receipt. (i) Counsel for the Plaintiff submitted that there was an oral contract after the letter on BAP. Defendant s Submission [6] The learned counsel for the Defendant pointed to the Court that the Plaintiff s claim is only based on the Letter of Award and the invoices. The Defendant submitted that the Panel Letter of Business Associate Programme, the Letter of Award was not a contract between Plaintiff and 13
Defendant for the management Projek Maharaja Lawak Mega dan Dewan Kencana as claimed by the Plaintiff. [7] The counsel for the Defendant submitted in its Defence (at pages 29-42 of Appeal Record Bahagian A), that there were no nexus between Plaintiff and Defendant as there was no offer made, therefore there was no acceptance, no consideration and no intention to create legal relations between the parties: 6. (i) Merujuk kepada perenggan 6 Pernyataan Tuntutan, Pihak Defendan ingin menafikan sekeras-kerasnya kenyataan bahawa Plaintif pernah dilantik untuk menguruskan dua (2) Majlis khusus seperti yang didakwa secara salah oleh Plaintif. Surat panel BAP tersebut bukan merupakan surat lantikan dari Defendan untuk menguruskan dua majlis khusus. (ii) Defendan secara tegas menegaskan bahawa Defendan tidak pernah sama sekali melantik Plaintif untuk kerja-kerja di para 6 i)(a) dan (b) tersebut di atas. Tidak ada perhubungan ( nexus ) di antara Plaintif dan Defendan berkaitan dua skop kerja tersebut di (a) dan (b) tersebut. Tidak ada atwaran dari Defendan, penerimaan dari Plaintiff, Nota tempahan (Purchase Order), Nota serahan kerja (Job Delivery Order), dan/atau melantik Plaintif untuk event Pementasan Dewa Kencana seperti yang didakwa. Tuntutan Plaintif adalah tidak berasas sama sekali. 9. (i) Merujuk kepada Para 9 Pernyataan Tuntutan, Defendan tidak pernah meminta apa-apa sebut harga dari Plaintif, defendan juga tidak pernah 14
mengeluarkan Nota Tempahan ( Purchase Order ), tidak juga wujud surat lantikan dan juga tidak pernah wujud apa-apa pengesahan pengesahan perlaksanaan kerja yang dilakukan oleh Defendan.. [8] The Defendant submitted that the Letter of Award was only an appointment letter for Plaintiff to be a panel for the BAP, an initiative programme organized by the Shah Alam Convention Centre. It was submitted in the written submission that the BAP provides the incentives and it was not an appointment letter to organize events as claimed by the Plaintiff: [9] On this basis, the Defendant directed the Court s attention to the procedural requirement in obtaining services where there is an approval process by the EXCO to be followed and made reference to some of the examples of the approval process (at pages 70 71 of the Appeal Record Bahagian B). Therefore, as submitted by the Defendant, the Plaintiff s services nor the appointment was never approved by the Defendant. [10] The counsel for the Defendant also submitted to this Court that there was no quotation, Purchase Order nor Delivery Order and the only document produced by the Plaintiff was just the invoices. The Defendant 15
had replied its objection via email to the Plaintiff s claim of a purchase order and delivery of services (as in page 520 paragraph 3, Appeal Record Bahagian C). [11] The counsel for the Defendant submitted the evidence on contractual relationship based on the testimony given by Plaintiff s witness SP2 (Datuk Zulkifli Bin Ishak) (at pages 120-121 of the Appeal Record Bahagian B) that the document referred to which was the Letter of Award was not a contract but an appointment letter in general. The counsel for the Defendant relied on the authority which makes a contract under section 3 and section 10 of the Contracts Act 1950 and based on one article of 2012, 5 MLJ CXLVII, Only agreements enforceable by law are legally binding contracts. An offer or proposal is one of the essential elements for the formation of contract. The contracts cannot be entered into without one of the parties offering or proposing and the other accepting. [12] The Defendant s solicitors replied to the Plaintiff on 11.2.2014 denying of any money owing to the Plaintiff. 16
[13] In relation to the contention that there was an oral contract, the counsel for the Defendant submitted that such statement by Plaintiff s witness SP2 was an afterthought and it was not pleaded by the Plaintiff and invited the Court to expunge the statement from the record. [14] In relation to the working paper claimed prepared by the Plaintiff for the purposes of managing the two events, the learned counsel for the Defendant informed this Court that the working paper by Plaintiff was not the original copy. The working paper which was provided by the Defendant as tendered in court, marked as exhibit D23 D30 (at pages 460-504 Appeal Record Bahagian C). The copy by the Plaintiff did not have the Financial Controller s and the Chief Executive s approval of the Defendant and were marked as ID at the Sessions Court. [15] The invoices as submitted by the Plaintiff to the Defendant (at pages 379-385, Appeal Record Bahagian C), had been objected by the Defendant by putting a note acknowledge receipt of this Invoice without admission of liability, on each invoices handwritten by the Defendant s CFO (Financial Controller). 17
THE COURT S FINDING [16] There were three issues raised at the trial court which are as follows: (i) Whether the Defendant s Letter of Award of 5.9.2011 to the Plaintiff was a Contract between the Plaintiff and the Defendant to manage the two events that is Dewa Kencana Theatre and Maharajalawak Mega ; and (ii) Whether Defendant has to pay Plaintiff for the expenses and management fee in managing the two theatre performances Dewa Kencana and Maharajalawak Mega as demanded in the invoices issued by the Plaintiff. (iii) whether the Defendant was estopped from raising objection on the invoices that had been submitted by the Plaintiff. Whether Letter of Award was a Contract? 18
[17] The heart of the matter revolves around the Letter of Award of 5.9.2011 which is also known as the BAP Letter between the Plaintiff and the Defendant (at pages 351-353 of the Appeal Record Bahagian C). The Letter of Award was signed by the Defendant s Chief Executive Officer and some of the salient provisions are reproduced here, as follows: APPOINTMENT AS PANEL OF EVENT MANAGERS FOR SHAH ALAM CONVENTION CENTRE BUSINESS ASSOCIATE PROGRAM (BAP) 1. SACC Convec Sdn Bhd ( SACC ) are please to inform you that ZI Production Sdn Bhd is hereby appointed as a panel of Event Managers for Shah Alam Convention Centre, placed under our Business Associate Program (BAP). 2. Your appointment is hereby acknowledged, subject to paragraph 3 and 4 herein below, the Terms and Conditions of Contract, Specifications, Price Schedule, this Letter of Award and other Documents of the Contract. 3. You are required to execute in due course the formal Contract between SACC Convec Sdn Bhd and ZI Production Sdn Bhd within 30 days from date of this Letter of Award. Pending the execution of the formal Contract, this letter, as clarified and amended by the Terms and Conditions of Contract and this Letter of Award shall constitute a binding agreement between ZI Production Sdn Bhd and SACC Convec Sdn Bhd. 4. Your benefits as a BAP member (as specified in the formal Contract will comprise as follows:.. 19
5. The provision of the incentives and benefits in accordance with paragraph 2 and 3 herein above are subject to the terms and conditions determined in the Contract and shall be a condition precedent to the validity of this Letter of Award. 6. The effective date of the Contract shall be the date of this Letter of Award. The Contract Period shall be for two (2) years commencing from 5 September 2011 to 30 September 2011 (both dates inclusive), with an option for an extension for a further period of two (2) years subject to a mutual agreement. 7. This Letter of Award shall be subject to the matters contained in Terms and Conditions of the Agreement. This Letter of Award is sent to you in duplicate. Kindly return the original copy, duly signed and witnessed where indicated to this office and retains the duplicate copy. [18] The learned counsel for the Plaintiff submitted that the Plaintiff was offered as a member of Defendant s BAP to manage two events on behalf of the Defendant with the offered payment of RM280,000.00 which Plaintiff accepted. The Plaintiff s counsel relied on section 2 of the Contracts Act 1950 and cases, Kumpulan A Besik Sdn Bhd v Araman Jaya Sdn Bhd [2011] 8 MLJ 77; Charles Grenier Sdn Bhd v Lau Wing Hong [1996] 3 MLJ 327 and Wing Fah Enterprise Sdn Bhd v Matsushita Electronic Components (M) Sdn Bhd [2011] 9 MLJ 320. 20
[19] In ascertaining the language of the letter of award or whether there was an agreement, Chesire, Fifoot & Furmston s Law of Contract, Sixteen Edition, stated that the task of the courts is to extract the intention of the parties both from the terms of their correspondence and from the circumstances which surround it and the interpretation that may be provided. This had been pointed out in the case of Esso Standard Malaya Bhd v Southern Cross Airways (Malaysia) Bhd [1972] 1 MLJ 168 by Raja Azlan Shah J (as he then was) that if the agreement is made subject to certain conditions to be specified in a formal contract, then until those conditions are thus specified, there is no final agreement such as the court will enforce. [20] After a careful perusal of the Letter of Award, this Court finds that the pertinent statements in relation to the Plaintiff s contractual status with the Defendant can be found in paragraphs 2, 3 and 5. Paragraph 2 stated that the Plaintiff s appointment is acknowledged and is made subjected to paragraphs 3 and 4 of the Letter of Award which is conditional upon formalizing a contract. At paragraph 2, it mentioned the other conditions to a contract that is, the Terms and Conditions of Contract, Specifications, Price Schedule, this Letter of Award and other Documents of the Contract. 21
[21] At paragraph 3, the Plaintiff is required to execute the formal Contract within 30 days and Pending the execution of the formal Contract, this letter, as clarified and amended by the Terms and Conditions of Contract and this Letter of Award shall constitute a binding agreement between ZI Production Sdn Bhd and SACC Convec Sdn Bhd. Whereas paragraph 5 stated that the incentives and benefits are subject to the terms and conditions determined in the Contract, and shall be a condition precedent to the validity of this Letter of Award. [22] The Letter of Award clearly stated that the Defendant is appointing Plaintiff as a member of the Panel BAP and Plaintiff s performance in sealing the agreement is still subjected to the terms and conditions of a formal contract. Borrowing the words in the said Letter of Award, pending the formalization of a contract, the Letter of Award will be clarified and amended by the Terms and Conditions of Contract as stipulated in paragraph 3. In addition, the incentives and benefits for the Plaintiff is still subjected to the terms and conditions to be determined and must be a conditional precedent to the validity of the Letter of Award. 22
[23] As a general rule, when an acceptance to a contract is subject to contract, there is an apparent lack of intention to enter into a legally binding contract. The counsel for the Defendant submitted the Singapore Court of Appeal case of Compaq Computer Asia Pte Lyd v Computer Interface (S) Pte Ltd [2004] 3 SLR (R) 316. In that case, a written agreement could not be concluded and signed between Compaq and CIS and Compaq issued to CIS a letter of award (LOA) which enclosed various schedules setting out the services to be rendered and the charges. [24] The Court found that not all the essential terms had been set out in that LOA for instance payment terms, exclusion of liability and insurance which are vital for a contractual arrangement. It was held that the LOA was conditional upon the final terms and conditions being agreed, It seemed clear from the LOA that although CIS had been selected to be the subcontractor, there were terms on which the parties had yet to agree, and only upon the execution of a written agreement would there be a contract between the parties. [25] The counsel for the Defendant also submitted a legal article, Offer and Its Significance For Formation Of Contract: The Malaysian 23
Perspective [2012] 5 MLJ cxlvii by Dr. Adnan Trakic, which emphasized on formation of contract in the case of George Trollope & Sons v Martyn Brothers [1934] 2 KB 436 and as explained in the case of Storer v Manchester City Council [1974] 3 All ER 824 by Lord Denning, that there is no binding contract until the contracts of sale have been formally exchanged [26] This Court had also the benefit of reading the case of Tiverton Estates Ltd v Wearwell [1975] Ch 146 where at page 159-160, the statement subject to contract had been decided, in the words of Lord Denning,.. for over a hundred years, the courts have held that the effect of the words subject to contract is that the matter remains in negotiation until a formal contract is executed. [27] The High Court case of Kumpulan A Besik Sdn Bhd (supra) relied by the Plaintiff s counsel stated the two types of contract which are formal and informal. In the former, to constitute a valid contract, there must be separate and definite parties, the parties must be in agreement, there must be consensus ad idem and the parties must intend to create legal relations. 24
In the case of Charles Grenier Sdn Bhd (supra), there was sufficient clarity of the parties to the transaction including the price and the terms which are essential to constitute an agreement. [28] In this case however, based on the clear wordings of the Letter of Award, it is subjected to the formalization of contract which will clarify and amend the Letter of Award as specified in paragraphs 2, 3 and 5. There is no certainty as to the terms of a contract to be entered into and no consensus ad idem criteria under section 7 (a) of the Contracts Act 1950. [29] This Court is of the view that the letter may be called a letter of intent or a letter of award and whatever name it carries, the intention of the parties must be objectively sought. Although the case referred by the Defendant s counsel is a Singaporean authority which is persuasive and not binding to be followed, the facts of that case is similar to the present case. This Court rely on the submissions put forward by the counsels. A good counsel is one who produces authorities to support the statement of law he is relying upon and they could be in the form of reported judgments, 25
textbooks or even published law articles: Pacific Forest Industries Sdn Bhd & Anor v Lin Wen-Chih & Anor [2009] 6 MLJ 293. [30] In this instant case, in not fulfilling the conditions as stated in the Letter of Award, although Plaintiff had acknowledged to accept the terms and conditions in the said letter, without the formalization of a contract, the Letter of Award ceases to be valid. [31] The evidence of no contract is corroborated by the Plaintiff s witness, SP-2, Datuk Zulkifli Bin Ishak, one of the Directors for the Plaintiff whom testified (at pages 120-121 Appeal Record Bahagian B) and admitted that the Letter of Award was not a contract: S : Ya, soalan saya tadi Dato ada cakap dalam jawapan nombor 10 tadi kausa tindakan plaintif dan defendan adalah kemungkiran kontrak. So saya ada tanya apakah kontrak yang dimaksudkan oleh Dato. So soalan saya seterusnya saya merujuk kepada mukasurat 13 dan 16 adakah ini yang kontrak yang dimaksudkan Dato? J : Ini appointment letter sebagai panel event. 26
S : Bukan inilah kontrak dia? J : Ini bukan kontrak. S : Oh bukanlah? J : Ini appointment letter. [32] Based on the record by the Defendant s witness, he explained to the Court that it was a proposal for the appointment which were extended to other event management companies and has yet to formalize a contract between the Plaintiff and the Defendant. This Court also finds that there was no agreed price for the services to be rendered by the Plaintiff for the consideration of the benefits in carrying out the tasks in the event the contract is executed. [33] The Plaintiff represented by the Chairman Datuk Zulkifli Bin Ishak signed the acknowledgment letter on 12.9.2011 for the Letter of Award which was returned to the Defendant. The returned Acknowledgment (at page 354 of the Appeal Record Bahagian C) accepting the Letter of Award stated as follows: 27
I, Datuk Zulkifli Ishak in the capacity of Chairman duly authorized to sign for and on behalf of ZI Production Sdn Bhd hereby to confirm acceptance of the terms and conditions stipulated in this letter. [34] As I have mentioned earlier, I wish to reiterate that in acknowledging the terms and conditions of the Letter of Award without any effect of formalization, the Letter of Award continue to cease as valid. [35] This Court is also aware of the other documentary evidence where the proposal for the appointment and to carry out a test run for the events is further supported by the Defendant s letter to a member of the EXCO of the State dated 21 October 2011 where it was the Defendant s proposal based on a working paper Cadangan Bagi Penjenamaan, Promosi dan Pemasaran Teater DiRaja Selangor sent on 13 October 2011, requesting for permission to use the Royal Theatre premise to carry out the test run. This can be found at the second paragraph of the reply letter by the EXCO member not objecting to the proposal, Sukacita dimaklumkan, setelah beberapa perbincangan yang diadakan di antara Y.Bhg Dato dan Pegawai saya, bahawa saya tiada halangan dengan cadangan tersebut di atas. Oleh itu saya bersetuju untuk membenarkan SACC Convec Sdn Bhd (SCSB) menggunakan premis Teater Diraja Selangor untuk tujuan 28
MENGUJILARI (Test Run), bermula serta merta sehingga 31 Disember 2011.. [36] In relation to the contention by the Plaintiff that there was an oral contract, the counsel for the Defendant submitted that such statement by Plaintiff s witness SP2 was an afterthought as it was not pleaded by the Plaintiff. This Court will not consider such evidence as it was not pleaded and stand by the established principle that parties are bound by their pleadings as decided in the Federal Court decision in Dato Tan Chin Who v Dato Yalumallai @ M Ramalingam s/o V Muthusamy [2016] MLJU 641. Whether Defendant has to pay Plaintiff? [37] The Court had heard that the Plaintiff prepared the invoices without any supporting documents. There was no quotation, Purchase Order and Delivery Order which the Court does wonder on what basis the invoices were prepared. The Defendant submitted that no documents to support the offer and the acceptance made as required under section 3 and section 10 of the Contracts Act 1950 and relied on the case of CFB Aluminium Extrusin SDn Bhd v Lim Soon Seng [2014] AEMJ 1192 that was referred 29
in the case Wescourt Design Sdn Bhd v Wescourt Furnishing (M) Sdn Bhd [2015] 11 MLJ 735. [38] This is further supported by the evidence of the Plaintiff s witness, SP-1 (at page 97, Appeal Record Bahagian B) who was the former CEO of the Defendant that there were no supporting documents: S : Itu yang saya tanya tadi Dato, kalau ada kos, kalau ada pihak ketiga melibatkan pihak ketiga sebagai ZI mana dia surat tawaran untuk ini. Tak ada, delivery order tak ada, sebut harga tak ada, tak dibawa kepada Exco Memang semua tak ada kan. Tiba-tiba timbul invois? Betul? J : Betul. S : Betul? J : Betul. [39] The other evidence is based on the record, the statement by Plaintiff s witness SP-3 (at pages 195, 197 Appeal Record) where no supporting documents in the preparation of the invoices: S : Sebelum En Leong buat invois itu En Leong berpandukan kepada apa? Supporting dokumen ada tak selalu? 30
J : Tak ada. S : So based on what did you prepare this invoice? J : Based on my boss instructions. S : Appointment letters? J : Tak ada. [40] This Court is of the view that in matters concerning goods and services where sold and delivered, there must be prove that the order was made and the goods were received by the buyer. This Court rely on the case attributed by the Defendant s counsel, Wescourt Design SDn Bhd v Wescourt Furnishing (M) Sdn Bhd [2015] 11 MLJ 735 which referred the case of CFB Aluminium Extrusin SDn Bhd v Lim Soon Seng [2014] AEMJ 1192 where Lim Chong Fong JC (now High Court Judge) had said: 16. Generally, it is plain that the seller in a claim for payment for goods sold and delivered must prove that the order was made and the goods were received by the buyer. The proof is commonly by way of producing in court the purchase order, delivery order and the invoice for the goods ( the key documents ). 31
[41] Based on the invoices, this Court finds that they were prepared without any supporting documents to proof of any contract existed. This Court is concerned with the non-existence of purchase order and delivery order to substantiate the invoices produced by the Plaintiff which is in the ordinary course of business. This Court wish to rely on the authority of CFB Aluminium Extrusion Sdn Bhd (supra) case which stated that, [13] Consequently in civil litigation..that relevant documents that substantiate or support the oral allegations must be adduced at the trial where such documentary evidence is expected to be available in the ordinary course of business and commerce. Otherwise a reasonable explanation must be tendered to justify their non production. In the absence of these documents or explanation of their absence, mere oral testimony is not weighty enough to overcome the burden of proving the allegations on a balance of probabilities [42] It is essentially important to produce to the Court those documents. In commercial transactions, these documents are normally expected to be generated in the course of business and could be produced in Court. It is the Plaintiff who claimed for breach of contract and hence has the legal burden to proof the existence of a contract by way of producing the purchase order and the delivery order. 32
[43] The Plaintiff claimed that the working paper had been approved by the Defendant. The counsel for the Defendant submitted to this Court that the Defendant had received the working paper (as at page 460-504 Appeal Record Bahagian C) on 18.6.2012 which were attached with the said invoices and the Defendant s Financial Controller emailed to the sender of the working paper on 19.6.2012 (at pages 520-521 of the Appeal Record Bahagian C) raising doubt on the invoices submitted as there were no Purchase Order/Letter of Appointment and Delivery Services attached to the invoices. [44] The Defendant submitted that the working paper by Defendant is as tendered which can be found at pages 460 504 of the Appeal Record Bahagian C. Meanwhile the working paper by the Plaintiff which did not have the approval of the Financial Controller of the Defendant and the former Chief Executive Officer of the Defendant s approval, remained as ID at the Sessions Court, was never approved by the Defendant. [45] The Defendant s counsel directed the Court s attention to the working paper that was submitted by the Plaintiff dated 30.12.2011 whereas the invoices were dated 18.12.2011, 28.12.20111 and 26.11.2011. The 33
counsel for the Defendant submitted that the invoices could not be issued before the working paper was submitted. The counsel for the Defendant also pointed out to the Court that the Defendant had clearly objected by noting on the invoices acknowledge receipt of this Invoice without admission of liability handwritten by the CFO of the Defendant which the objection email made was also copied to the CEO and the EXCO. [46] This Court finds that the working paper claimed to be prepared by the Plaintiff would mean that the invoices were issued before the working paper was submitted for the services to be rendered which is not a practice in the ordinary course of business. This Court takes the working paper as claimed by the Plaintiff to be bad evidence to support the invoices. Whether the Defendant was estopped from raising objection [47] In relation to the issue of estoppel raised by the Plaintiff, it was claimed that the Defendant did not object on the invoices and therefore Plaintiff argued that the Defendant is estopped from denying. It is the Plaintiff who raised this rule and this Court finds that the Defendant had acknowledged receipt without admission of liability as stated in the invoices 34
by the Financial Controller. This Court finds that the Defendant had objected to the invoices and therefore the estoppel rule is irrelevant. [48] Reverting to the principle for appellate intervention raised by the Plaintiff, the Plaintiff submitted that the Court in hearing appeal will not disturb the finding of fact by any trial judge unless, the trial court is shown to be plainly wrong in arriving at its decision. A plainly wrong decision happens when the trial court is guilty of no or insufficient judicial appreciation of evidence. The learned counsel for the Plaintiff relied on the Federal Court decision of Dream Property Sdn Bhd v Atlas Housing Sdn Bhd [2015] 2 CLJ 453. [49] This Court is of the view that in reference to the decision of the Federal Court, Dream Property (supra) case as submitted by the Plaintiff, the Court should not intervene with the decision of the trial judge unless the Session Judge was plainly wrong in arriving to its decision, [60] It is now established that the principle on which an appellate court could interfere with findings of facts by the trial court is the plainly wrong test principle; see the Federal Court in Gan Yooki Chin 35
& Anor (P) v Lee Ing Chin @ Lee Teck Seng & Anor [2004] 4 CLJ 309; [2005] 2 MLJ 1 (ap p. 10) per Steve Shim CJ SS. [50] It is incumbent upon the Court to look at all the surrounding factors and to weigh and evaluate the documentary evidence as to whether they support the Plaintiff s oral testimony. This Court must direct its mind as to the probative effect of the documents and the evidence before the Court. It is always open for this Court to interfere if the findings made were unsupported by evidence or against the weight of evidence or if there was no proper judicial appreciation of the evidence or if there was any misdirection in law by the Session Judge: Jason Chan Huan Sen & ors v P.P. [2015] 2 CLJ 605. [51] In this case, the Court finds that the Session Judge had evaluated all the documentary evidence and the oral testimony of both Plaintiff s and Defendant s witnesses. The Session Judge did not consider evidence that was not tendered or withdrawn nor did she decide on an adverse inference from non-evidence: Tan Ah Chio & Ors v Lua Kim Soon & Ors [2015] 1 MLJ 334. It will be plainly wrong if this Court to state otherwise than its finding of the truth. 36
[52] This Court had given due consideration on the evidence of the letter, the record of the Plaintiff s witnesses statement whom testified admitting that the Letter of Award was not a contract and that the invoices were prepared without any supporting documents to proof the formalization of any contract. On that legal basis, the Court finds that the Plaintiff has failed to prove on the balance of probabilities that there was a contract between the Defendant and the Plaintiff. There was no money owed by the Defendant to the Plaintiff. I therefore dismissed the appeal with cost. Dated: 3 July 2017 (DATIN ZALITA BINTI DATO ZAIDAN) Judicial Commissioner Shah Alam High Court 37
Counsel for the Appellant: 1. Ganeson a/l Gunathan 2. Gomathy a/p Balasupramaniam Tetuan Ganeson Gomathy & Partners Peguambela & Peguamcara Suite A-1-5, 1 st Floor Kuchai Exchange No. 43, Jalan Kuchai Maju 13 Kuchai Lama, 58200 Kuala Lumpur Tel: 03-79725454 Fax:03-79724545 Counsel for the Respondent: Al-Sabri bin Hj. Ahmad Kabri Tetuan Al Sabri & Co Peguambela & Peguamcara Suite No. 11A Jalan Lawan Pedang 13/27 Seksyen 13, Tadisma Business Park 40100 Shah Alam Selangor Tel: 03-55110525/6 Fax: 03-55110528 38