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2021 MarsdenLR 2216
COURT OF APPEAL PUTRAJAYA
UMW TOYOTA MOTOR SDN BHD & ANOR – Appellant
Versus
ALLAN CHONG TECK KHIN & ANOR – Respondent
[Civil Appeal No: P-02(NCVC)(W)-1824-10/2019]
Consumers must establish induced reliance on false representations to claim misrepresentation. Expert testimony confirmed no excessive vibrations, overturning initial findings.
Headnote:(A) Consumer Protection Act 1999 – Section 10 – The plaintiffs alleged misrepresentation and breach of duty regarding excessive vibrations in the vehicle. The court found the representations by the defendants to be true and not misleading. (Paras 24, 75, 76)
Facts of the case: The plaintiffs purchased a Lexus NX200T after being assured of its smooth drive. They later complained of excessive vibrations. The learned High Court Judge originally sided with the plaintiffs, awarding damages. (Paras 1-24)
Findings of Court: The appellate court found no evidence supporting the claim of excessive vibrations, concluding that the plaintiffs failed to prove misrepresentation. (Paras 50, 55)
Issues: The primary question was whether the defendants had made false representations that induced the plaintiffs to purchase the vehicle, specifically regarding its comfort and driving quality. (Para 76)
Ratio Decidendi: The appellate court held that the expert testimony presented by the plaintiffs did not support their claims of abnormal vibrations, indicating that the original judge misapprehended the evidence. (Paras 55-67)
Result: The appeal by the defendants was allowed, and the prior judgment was set aside. (Paras 116)
Introduction
[1] On 6 September 2019, after a full trial, the High Court had allowed the claim of the respondents (the 1st and 2nd plaintiffs in the Court below) for general damages predicated on the appellants' (the 1st and 2nd defendants in the Court below) breach of duty to make accurate and true representations in respect of a vehicle which had induced the respondents to purchase it from the appellants. The appeal before us is against that decision of the High Court. We heard the appeal on 15 September 2020 and allowed it. These are the reasons for our decision.
[2] For convenience, the parties will be referred to as they were in the High Court.
The Plaintiffs' (Respondents) Case
[3] The plaintiffs wanted to buy an SUV type vehicle when they came across the 2nd defendant's Facebook page containing advertisements and numerous posts on the Lexus NX200T model. The 2nd defendant is the main distributor of Lexus brand vehicles in Malaysia.
[4] As the plaintiffs were interested in the vehicle, a test drive was arranged with the sales representative of the 1st defendant, Ms. Tracy Lim, who attended to the plaintiffs. From the test drive, the plaintiffs found the vehicle to provide for a smooth and comfortable ride. They were assured that the vehicle would provide a similar driving experience.
[5] Influenced and encouraged by the assurances, representations and advertisements of the defendants, the plaintiffs were led to believe that the Lexus SUV model NX200T would guarantee a smooth and comfortable drive. They then on the spot, placed a booking fee of RM5,000.00 with the 1st defendant for a Lexus NX200T (A).
[6] On 31 March 2016, the plaintiffs paid a further sum of RM113,700.00 with the balance of the purchase price to be financed by Public Bank Berhad. The vehicle was registered on 8 April 2016 in the sole name of the 2nd plaintiff. The hire purchase loan with Public Bank was settled in January 2019 by the 2nd plaintiff thereby making her the owner of the vehicle.
[7] From the time of delivery of the vehicle on 8 April 2016, excessive vibrations from the floorboards were felt when driving the vehicle. This resulted in the 1st plaintiff experiencing numbness and fatigue in his legs after driving it for thirty minutes. Just after three days from delivery, the plaintiffs contacted the 1st defendant to complain of the excessive and abnormal vibrations.
[8] The 1st defendant sent its General Manager, Mr Wong Kok Choon and one Mr. Yew Yeok Beng to attend to the plaintiffs and the issues with the vehicle. Consequently, the plaintiffs sent the vehicle to the 1st defendant's service centre for evaluation on 23 April 2016. It was then taken back to await the results of the evaluation.
[9] In the meantime, the problems with the excessive and abnormal vibrations with the vehicle persisted. The vehicle was sent back to the 1st defendant for a second inspection on 30 April 2016. However, the 1st defendant was still unable to resolve the problem of excessive vibrations in the vehicle.
[10] Thereafter the plaintiffs brought the matter to the attention of the Lexus Headquarters in Kuala Lumpur. On 10 May 2016, the plaintiffs received a letter from the 2nd defendant containing a table of the results of vibration tests carried out by the latter's technical team and claiming that there was nothing wrong with the vehicle.
[11] Despite repeated requests, the plaintiffs were unable to get the detailed results of the tests carried out by the 2nd defendant. They then sought out experts in the field of vibrations to ascertain whether the vehicle indeed have excessive vibrations.
[12] The first expert that they consulted was Dr. Ahmad Zhafran Ahmad Mazlan (SP1). He is a senior lecturer at Universiti Sains Malaysia (USM), specialising in the field of "Sound and Vibration, Active Vibration Control, Active Force Control, Piezoelectric Sensor and Actuator, Structural Dynamic Modification, System Dynamic Modelling and Simulation".
[13] The second e
