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2012 MarsdenLR 29
COURT OF APPEAL, PUTRAJAYA
LANGKAWI R&D ACADEMY SDN BHD – Appellant
Versus
KETUA SETIAUSAHA KEMENTERIAN PERTAHANAN MALAYSIA & ORS – Respondent
[Civil Appeal No: W-01-467-2010]
The court has discretion to determine trial methods and agreements between parties should be honored, especially concerning conditions precedent, which, if breached, justify contract termination.
Headnote:(A) Rules of the High Court 1980 - Order 33 - Contract law - The court may order issues to be tried before the trial or at its conclusion to save costs and time - Appeals dismissed on basis that both parties agreed on written submissions for trial; appellant not entitled to challenge the agreed mode belatedly - The learned Judge correctly interpreted the contract terms regarding the delivery of a flyable technology demonstrator and performance bond requirements - Breach of conditions precedent justified termination of contract. (Paras 10, 12, 37, 39, 46)
(B) The principles derived include the court's discretion to determine the method of trial and the importance of parties adhering to their agreed procedural agreements - Failure to fulfill conditions precedent discharges the contract and allows for damages claimed. (Paras 31, 41, 42)
Facts of the case:
The appellant entered into a contract with government to refurbish a fighter aircraft. The appellant failed to deliver the technology demonstrator on time and did not provide the required performance bond, leading to termination by the respondents. The trial judge’s decision was based on submissions rather than witness testimony as agreed by both sides. (Paras 1, 24, 28)
Findings of Court:
The High Court did not err in dismissing the appellant's claims due to breach of contract, affirming that the learned Judge properly applied the principles of contract law relating to conditions precedent. (Paras 36, 46)
Issues: Whether the appellant was denied a fair trial by proceeding on written submissions and the implications of the agreed mode of case management. (Paras 2, 5, 21)
Ratio Decidendi: The Judge's decision to opt for written submissions after thorough analysis of pleadings is within judicial discretion, and the appellant is bound by their earlier consent to the process - Contractual obligations regarding timely delivery and performance bonds must be met. (Paras 13, 15, 36)
Result: Appeal dismissed with costs of RM15,000.00.
| Table of Content |
|---|
| 1. fair trial procedure and options during case management. (Para 2 , 3 , 4 , 5 , 6) |
| 2. agreement by parties to written submissions without objection. (Para 9 , 17) |
| 3. (Para 10 , 13 , 14 , 15) |
| 4. interpretation of contractual terms and conditions precedent. (Para 11 , 12 , 31) |
| 5. contract details including breaches and obligations. (Para 24 , 25 , 26 , 27 , 28 , 29 , 30) |
[1] This is the judgment of this court.
[2] The Memorandum of Appeal filed by plaintiff appellant questioned the mode adopted by the learned High court Judge in disposing off the case by not calling any witnesses and this was said to have prejudiced the plaintiff appellant of a fair trial. The hearing of the case was set for three (3) days beginning from 6 April 2010 to 8 April 2010. But on the first day of the trial, and that would be on 6 April 2010, the learned High court Judge conducted a case management and instructed counsel on both sides to examine and analyse the pleadings paragraph by paragraph in order to determine the issues to be tried.
[3] On 6 April 2010, three options were given by the learned High court Judge to counsel on both sides to select after perusing through the paragraphs of the pleadings whether to determine the issues by way of a trial or by way of written submissions or decide that the paragraphs in the pleadings constituted non-issues. The three options can be seen in the notes of proceedings dated 6 April 2010 at pp 97 to 98 of the appeal record at Jilid 2, Bahagian "B" and they may be stated as follows:
(i) "X" refers to a non-issue; or
(ii) "T" refers to a trial where witnesses will be called; or
(iii) "S" refers to a submission.
[4] The appeal record for the session on 6 April 2010 at Jilid 2, Bahagian "B" is self explanatory. It shows that the learned High court Judge had given ample opportunities to counsel on both sides to decide and determine the options accorded to them. The learned High court Judge went through a meticulous process of examining every paragraph in the pleadings with active participation of counsel on both sides in order to ensure that all the paragraphs were read before the options were exercised.
[5] After completing the rigmarole of analysing the pleadings, the plaintiff appellant and the defendants respondents agreed that there were no paragraphs in the pleadings that needed to be determined by way of a trial. In fact, the parties agreed as follows:
(i) that paras 3, 6, 7, 12 to 24, 26 to 34, 36 to 46 and 49 to 52 in the Statement of Claim were issues that should be determined by the learned High court Judge by way of submissions; and
(ii) that the rest of the paragraphs in the Statement of Claim were not in dispute.
[6] It must be emphasised that after the pleadings were vigorously analysed, the plaintiff appellant did not at any time state that they did not agree to the resolutions arrived at by the learned High court Judge. Indeed both parties were co-operative and they agreed, upon directions by the learned High court Judge, to file in their written submissions based on the documents agreed to by both parties.
[7] The exchanges between counsel on both sides with the learned High court Judge as seen at pp 122 to 123 of the appeal record at Jilid 2, Bahagian "B" are now reproduced and they show the cooperation accorded to the learned High court Judge:
"Manogar : I'm wondering, My Lord, I don't see a 'T' here. (Laughter from the court).
Noramilia : Exactly.
Manogar : So what happens to this?
Judge : That's right. That's why I asked the question, whose bright idea was to ask for three days?
Manogar : I remain guided by - I suppose we remain guided by the three circles. What happens next?
Judge : Alright, so we don't have a 'T', so we only have 'S' - right?
Manogar : 'S', yes, My Lord.
Noramilia : Yes, Yang Arif. "
[8] And at p 127 of the appeal record at Jilid 2, Bahagian "B", the transcript shows the following exchange:
"Manogar : Another point, My Lord, just wish to clarify. The witness statements filed has be
