The burden of proof rests with the party who seeks to establish a claim; failure to provide substantive evidence leads to dismissal of claims irrespective of counterclaims.

Headnote:(A) Hire Purchase Act 1967 - Sections 7 and 16 - Sale of Goods Act 1967 - Claim for amount due under a hire purchase agreement for a motor vehicle - Defendant asserts vehicle was of unmerchantable quality and seeks refund and damages - Court established burden of proof on plaintiff; absence of substantiating evidence led to dismissal of claim. (Paras 10-11)

(B) Counterclaim - Defendant's claims regarding vehicle's condition deemed unsubstantiated - Court noted that vehicle acknowledged as half cut did not invalidate agreement as consideration was not found entirely lacking - Defendant's election to return the vehicle constituted repudiation of the agreement. (Paras 11-12)

Facts of the case:
The defendant entered into a hire purchase agreement for a vehicle later found to be unroadworthy. After discovering the vehicle's true condition, the defendant returned it and ceased payments. Plaintiff's claim for the hire purchase amount relied solely on pleadings without evidence.

Findings of Court:
Plaintiff failed to discharge burden of proof on claim; the counterclaim for refund, loss of use, and damages was unsupported by evidence.

Issues: Whether the hire purchase agreement was invalid due to alleged unmerchantable quality of the vehicle and the implications of returning the vehicle.

Ratio Decidendi: The court held the burden of proof lies with the plaintiff who failed to provide necessary evidence to support the claim; the counterclaim showed repudiation of the hire purchase agreement, and therefore, claims made by the defendant were not substantiated.

Result: Plaintiff's claim and defendant's counterclaim dismissed, costs granted to the prevailing party.

The plaintiff's claim against the defendant is for RM24,049.60 being the amount owing under a hire purchase agreement of a motor vehicle. In its defence and counterclaim the defendant is seeking (i) a declaration that the defendant return the motor vehicle to the plaintiff; (ii) the refund of RM15,678.00; (iii) damages, interest and costs.

The facts

The undisputed facts are as follows. On 24.1.2003 the defendant entered into a hire purchase agreement with the plaintiff whereby the defendant agreed to hire from the plaintiff a second-hand Proton Wira 1.3GL (M) bearing registration number JFB936. The motor vehicle was registered in the defendant's name on 11.2.2003.

In early 2005 the defendant was informed by a used car dealer that the motor vehicle was a 'kereta potong' (half-cut and welded car). The defendant then sent the motor vehicle to PUSPAKOM for an inspection. According to the PUSPAKOM report the motor vehicle is a half cut. The defendant stopped using the motor vehicle and informed the plaintiff to take back the motor vehicle and to refund the monies paid by the defendant. The defendant also stopped making the monthly payments under the hire purchase agreement. The motor vehicle was returned to the plaintiff on 3.5.2010. The plaintiff subsequently sent the motor vehicle to PUSPAKOM for an inspection on 3.5.2010 which also confirmed that it was a half cut.

Plaintiff's case

The plaintiff did not adduce any evidence at the trial of the action. Instead the plaintiff relied wholly on the pleadings and the bundles of documents filed. The plaintiff denies that there was any false representation or breach by the plaintiff under s. 7 of the Hire Purchase Act 1967 .

Defendant's defence and counterclaim

It is contended that the motor vehicle hired by the defendant was a used car which was not roadworthy because it was a half cut. The motor vehicle was not of merchantable quality because it could not be used on the road (s. 16 Sale of Goods Act 1967 ; s. 7(2) Hire Purchase Act 1967 ). There was therefore a total failure of consideration which invalidated the hire purchase agreement. The defendant is counterclaiming for loss of use of the motor vehicle at RM30.00 per day from 15.1.2005 and RM10,000.00 for mental suffering after becoming aware of the status of the motor vehicle.

Findings of the Court

It is trite that the party who desires the Court to give judgment as to any legal right or liability bears the burden of proof (s. 101(1) Evidence Act 1950 ). The burden of proof is on that party is twofold: (i) the burden of establishing a case; and (ii) the burden of introducing evidence. The burden of proof lies on the party throughout the trial. The evidential burden of proof is only shifted to the other party once that party has discharged its burden of proof. If that party fails to discharge the original burden of proof, then the other party need not adduce any evidence, in this respect it is the plaintiff who must establish their case. If they fail to do so, it will not do for the plaintiff to say that the defendant have not established their defence ( Selvaduray v. Chinniah [1939] MLJ 253 CA ; s. 102 ). On the effect of the burden of proof not being discharged, Terrell Ag CJ in Setvaduray v Chinniah, supra adopting the position stated by the Court of Appeal in Abrath v. North Eastern Railway Co [1883] 11 QBD 440 said:

In such a case as the present the position has been clearly stated in the judgment of Brett MR in Abrath v. North Eastern Railway Co [1883] 11 QBD 440, at page 452:

'But then it is contended (I think fallaciously), that if the plaintiff has given prima facie evidence, which, unless it be answered, will entitle him to have the question decided in his favour, the burden of proof is shifted on to the defendant as the decision of the question itself. This contention seems to be the real ground of the decision in the Queen's Bench Division. I cannot assent to this. It seems to me that the propositions ought to be stated th

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2010 MarsdenLR 2612

HIGH COURT, JOHOR BAHRUAMBANK (M) BHD – AppellantVersusMASRI ABDUL RAHMAN – Respondent[Civil Suit No. (MT -1) 22-677-2008]

The burden of proof rests with the party who seeks to establish a claim; failure to provide substantive evidence leads to dismissal of claims irrespective of counterclaims.

HIGH COURT, JOHOR BAHRU
AMBANK (M) BHD – Appellant
Versus
MASRI ABDUL RAHMAN – Respondent
[Civil Suit No. (MT -1) 22-677-2008]