JUDGMENT

Mohd Radzi Harun J:

Grounds

Introduction

[1] The Plaintiff claimed an amount of USD398,890.00 against the 1st Defendant for non-performance of a contract for sale and that the corporate veil of the 1st Defendant is lifted to declare the liability of the 2nd-4th Defendants that would make them equally liable.

[2] This Court allowed the Plaintiff's claims based on the grounds below.

Background

Plaintiff's Case

[3] Pursuant to a Sale and Purchase Agreement dated 20 June 2017 between the Plaintiff and the 1st Defendant ("SPA"), the 1st Defendant agreed to sell Bauxite minerals to the plaintiff by way of FOB to be loaded onto a vessel nominated by the plaintiff.

[4] The 1st Defendant was required to obtain all export and shipping licence and permits as exporter to effect the sale.

[5] The Plaintiff paid USD398,890.00 to the 1st Defendant but the 1st Defendant failed to load any cargo due to the 1st Defendant not having any Export Permit under Borang K2 as prescribed under the Customs Act 1967 ("AP").

[6] The Defendants were aware that the 1st Defendant does not possess the AP at the time when the SPA was signed.

[7] Despite the 1st Defendant's promise to return the monies to the plaintiff by 19 September 2017, the 1st Defendant failed to do so. The SPA came to an end on that date.

[8] Upon demand by the Plaintiff's solicitor, the 1st Defendant paid certain sum but continues to fail to pay the balance sum.

[9] The Plaintiff claimed an amount of USD398,890.00 against the 1st Defendant and that the corporate veil of the 1st Defendant is lifted to declare the liability of the 2nd-4th Defendants that would make them equally liable.

Defendants' Case

[10] The 2nd, 3rd and 4th Defendants were directors of the 1st Defendant company. The SPA was between the 1st Defendant and the plaintiff. There was no guarantee agreement entered into by the 2nd-4th Defendants with the plaintiff.

[11] The Plaintiff admitted that the moratorium that affected the mining of Bauxite in Pahang was in effect before the SPA was signed and the moratorium continued to be in force when the plaintiff filed its action against the defendants in January 2019.

[12] Clause 13 of the SPA is clear that the SPA will be suspended in the event of any restriction ordered by the State Government.

[13] The Plaintiff failed to comply with the terms of the SPA.

Finding

[14] The 1st Defendant's argument against the plaintiff's Suit due to the existence of the arbitration clause in the SPA must fail in limine as the 1st Defendant had not invoked its right to utilise that provision at the time when the lifespan of the SPA was still alive.

[15] This Court further found that the capacity of SP1 as director of the plaintiff was never raised or questioned by the defendants prior or during the course of the trial. SD1 himself in his evidence never disputed the legality of the plaintiff as a company incorporated in Hongkong. The Certificate of Incorporation of the plaintiff in Hongkong on 3 October 2012 as shown in exh P3 and reference to the same as shown in the SPA in exh P13 were never disputed by the defendants' witness.

[16] The issues raised by the counsel for the defendants that SP1 failed to prove he is the plaintiff's director or was an authorised director, and that the plaintiff failed to show its business licence, are therefore without basis.

[17] This Court agrees with the Plaintiff's counsel that in assessing and evaluating the evidence of the witnesses during the trial, the principle that must be adhered to by this Court is that the oral evidence must be evaluated against the contemporaneous documentary evidence before the Court : Tindok Besar Estate Sdn Bhd v. Tinjar Co; [1979] 2 MLJ 229, FC, that when there exists a conflict between the oral evidence and the documentary evidence before the Court , the Court must make reference to the overall probabilities including conduct of the witness to ascertain the truth: Eastern & Oriental v. El Various George Fernandez [1988] CLJU 161, SC