In a sale claim, the burden lies on the buyer to prove defects; mere assertions of issues without expert evidence fail to establish unmerchantability or breach of warranty.

[1] The plaintiff claims for the refund of RM382,948 from the 1st defendant being the purchase price of a Mercedes Benz E280 Avantgarde together with damages, interests and costs. The plaintiff purchased the car on 19 June 2007 for the exclusive use of its Chief Executive Officer (CEO). The plaintiff claims that due to the several mechanical electronic and/or electrical problems encountered, the car is of unmerchantable quality, unfit for purpose and had material inherent latent defects rendering the car unroadworthy and unsafe to drive and that the defendants are in breach of contract.

[2] The defendants deny the alleged breaches and contended that the car was sufficiently and properly repaired under the terms and conditions of the Manufacturer's Warranty.

The Plaintiff's Case

[3] The plaintiff purchased the car when it was about six months pre-owned by the 1st defendant and had about 600 kms on its odometer. Besides the purchase price, the plaintiff paid the sum of RM11,652.87 for motor insurance, RM830 for transfer fee and handling charges and RM2,000 for the tinting of the wind screen and windows.

[4] The plaintiff took possession of the car on 19 June 2007. Subsequently, the car developed the following problems:

[5] As a result of the problems encountered and the alleged latent defects, the plaintiff claimed that it was a danger to drive the car on the road as it was unroadworthy.

[6] Besides the claim for the refund of the purchase price and special damages, the plaintiff also claims for general damages for "discomfort, inconvenience, extra expenditure, distress, anxiety and severe embarrassment caused to the plaintiff."

The Defendants' Case

[7] The defendants deny that the car was defective or was unroadworthy, of unmerchantable quality or unfit for purpose.

[8] The defendants averred that in any event the terms and conditions of the Manufacturer's Warranty applied and that the car had been properly repaired by the defendants.

[9] The defendants further averred that the plaintiff has failed to prove its case on liability as well as on the quantum of damages.

Issues To Be Tried

Essentially, there are two main issues to be determined by the court namely.

[10] Whether the car purchased by the plaintiff was defective, had material inherent latent defects and was not of merchantable quality and unfit for purpose in breach of the terms and conditions of the contract for sale.

[11] Whether the defendants, if liability is established, are also liable to pay special damages in the sum of RM14,982.87 and for loss of user at RM700 per day for the days the car was in the defendants' workshop, in addition to the refund of the purchase price.

Findings By The court

[12] Having read the written statements of the witnesses, heard the oral evidence, read the documents and the written submissions of both counsel for the plaintiff and defendants, I arrived at the following:

[13] The CEO of the plaintiff Lee Chuan Yew (PW1), for whose exclusive use the car was purchased, took possession of the car personally on 19 June 2007 after making a 'Pre Delivery Inspection' (encl. 8 Ikatan Dokumen - Page 1 Borang Akuan Penerimaan Kenderaan). The car was found to be in good order. Section 41 of the Sale of Goods Act 1957 (Revised 1989) (SGA) provides that unless and until a buyer has had a reasonable opportunity of examining the goods for the purpose of ascertaining whether they are in conformity with the contract, he is not deemed to have accepted the goods. In this case as PW1 had the reasonable opportunity to inspect the car before taking delivery of it, I hold that the plaintiff had in fact accepted the car unconditionally on 19 June 2007.

[14] PW1 used the car for about four months travelling over 18,000 kms before the car broke down for the first time on 21 October 2007. The car clocked another 3,000 kms after the first repairs and before it was sent in to the defendants' workshop for the fourth and last time on 1 December 2007. At no time did