JUDGMENT

Faridz Gohim Abdullah JC:

Introduction

[1] This is the Appellant's (Plaintiff) appeal against the whole decision of the Magistrate given at Kuching on 15 February 2024 in dismissing the Appellant's claims with costs of RM10,325.00. The grounds of appeal are set out in the Appellant's Memorandum of Appeal at pp 14 - 17 of Part A, Record of Appeal.

[2] The Respondent (Defendant) did not appeal against the dismissal of their Counterclaim. As such, the issue of Counterclaim will not be addressed by this Court .

[3] Having considered the appeal, I decided to allow the appeal in part as follows:

(a) The claim for refund of the deposit paid by the Appellant to the Respondent in the sum of RM5,000.00 is allowed with interest at 5% per annum from 9 June 2018 until the date of full settlement;

(b) The claim for RM20,015.00 by the Appellant is allowed and to be paid by the Respondent to the Appellant with interest at 5% per annum from the date of judgment, ie 18 November 2024, until full and final settlement.

(c) The decision of the learned Magistrate in dismissing the Plaintiff's claim for RM210,000.00 for alleged loss for the damage of 10 rolls of insulation papers is upheld and maintained.

(d) Costs of RM5,000.00 to be paid by the Respondent to the Appellant here and below.

[4] Below are the grounds for my decision. I will refer to the Appellant as the Plaintiff and the Respondent as the Defendant respectively.

Brief Background Facts

[5] In the Magistrates Court , the Plaintiff claimed for breach of an agreement wherein the Plaintiff, through its Director, Kao Che Jen, made a deposit for RM5,000.00 to the Defendant for the supply and installation of an aluminium shutter at the Plaintiff's factory.

[6] Further, the Plaintiff is claiming damages amounting to RM210,000.00 being the loss for the damage of 10 rolls of insulation papers and RM22,015.00 as the Plaintiff had to engage the third-party company to install aluminium shutter due to the Defendant's failure in supplying and installing a new aluminium shutter at the Plaintiff's factory.

[7] On 11 March 2024, the Plaintiff's advocates wrote a letter to the Defendant to issue a termination notice for the work by the Defendant and asked for a refund of RM5,000.00. The Defendant did not return the deposit, which resulted in the Plaintiff filing the suit against the Defendant.

[8] After the full trial, on 15 February 2024, the learned Magistrate dismissed the Plaintiff's claims with costs of RM10,325.00. The learned Magistrate's Brief Decision After Full Trial can be found on pp 22 to 27 of Part A, Record of Appeal.

[9] Dissatisfied with the said learned Magistrate's decision, the Plaintiff appealed to the High Court .

The Memorandum Of Appeal

[10] The Plaintiff's ground of appeal can be found in the Memorandum of Appeal on pp 14 - 17 Part A of the Record of Appeal, listing nine (9) grounds of appeal against the finding and decision of the learned Magistrate in dismissing the Plaintiff's claims with costs of RM10,325.00.

Plaintiff's Submissions

[11] Briefly, the Plaintiff's submissions are premised on the following points:

Defendant's Failure To Supply And Install The Rolling Shutters- Breach Of The Agreement

[12] It was submitted that the agreement between the Plaintiff and the Defendant was made orally and the existence of the Agreement is not in dispute.

[13] The Defendant, through DW2 had stated that they had gone to the worksite, the Plaintiff's factory, sometime in October 2018. However, for a period of 3 ½ years until the filing of this action the Defendant never supplied and installed the said aluminium shutter at the Plaintiff's factory.

[14] The Plaintiff submitted that during the trial, both Defendant's witnesses, DW1 and DW2 admitted that there were problem with the belting and the motor, which was why the aluminium shutter could not be installed. Based on the evidence of DW1, the belting was missing while DW2 stated that the belt could not roll up.

[15] The Plaintiff alleged that the Defe