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2009 MarsdenLR 719
HIGH COURT (KUALA LUMPUR)
MARY LIM THIAM SUAN, JC
GUAMAN NO D7-22-183-2000
25 June 2009
Mary Lim Thiam Suan, JC
GROUNDS OF JUDGMENT
Pursuant to order of court dated 24.9.2003, these 3 cases were ordered to be heard together.
The facts and issues in this case revolve around the hire-purchase of a Mercedes Benz W220 S320L bearing registration number WGY 911 [vehicle]. On the first day of trial, the parties reached further consensus on how the trial was to proceed. Because of the nature of the claims, cross-claims and defences, the parties were referred to respectively as the dealer, owner, hirer and guarantor.
In respect of evidence the parties agreed to rely on affidavits or witness statements, as the case may be. The dealer relied on the affidavit and witness statement of Syed Omar Shahabuddin Bin Syed Abdullah [Syed]; the owner on the affidavits of Tan Wee Sen [Tan] and Shirley Ong Gek Lian [Shirley]; and finally, both the hirer and the guarantor relied on the affidavit of Pang Tee Chiang @ Phang Nyiok Pan [Pang].
To facilitate the arguments, a Chronology of Events as gleaned from the affidavit and documentary evidence filed was also prepared by the parties -
| No. | Date | Events |
| 1. | July 1999 | The dealer sold the vehicle to the hirer at the purchase price of RM943,002.75 |
| 2. | 16.7.1999 | The vehicle was delivered to the hirer |
| 3. | 16.7.1999 | The hirer issued a Cheque No: 437730 for RM175,002.75 to the dealer |
| 4. | 22.7.1999 | Cheque No: 437730 was dishonoured |
| 5. | 24.7.1999 | The hirer issued a replacement Cheque No: 437735 for RM175,002.75 to the dealer |
| 6. | 24.7.1999 | The hirer entered into hire purchase agreement with the owner |
| 7. | 24.7.1999 | The guarantor executed guarantee agreement with the owner |
| 8. | 26.7.1999 | Cheque No: 437735 was dishonoured |
| 9. | 3.8.1999 | Dealer informed the hirer that the 2nd cheques were dishonoured |
| 10. | 15.9.1999 | Letter of demand was issued by the dealer's solicitors, Messrs Fozi Zain & Partners |
| 11. | 25.9.1999 | Fourth Schedule Notice served on the hirer by the owner |
| 12. | 30.9.1999 | The registration card of the vehicle was forwarded to the hirer |
| 13. | 30.9.1999 | The hirer informed the owner that the registration card states that the vehicle is an imported used car |
| 14. | 9.10.1999 | Notice under Rule (3) of the Hire Purchase Regulations (Repossession and Maintenance of Records) 1976 was served on hirer |
| 15. | 5.11.1999 | The vehicle was detained by Royal Customs and Exercise Department |
| 16. | 1.12.2000 | The vehicle was released by the Royal Customs and Exercise Department and informed that no offence been committed with regard to the vehicle |
| 17. | 9.12.2000 | The owner took back vehicle from the Royal Custom and Exercise Department |
| 18. | 13.12.2000 | Notice of intention to repossess (Fifth Schedule Notice) dated 13.12.2000 was served on the hirer and guarantor |
| 19. | 16.1.2002 | Notice of demand served to the guarantor by the owner |
| 20. | January-March 2001 | Advertisements in The China Press – auction |
| 21. | 5.4.2001 | The owner informed the hirer and the guarantor the auction was unsuccessful |
| 22. | 29.11.2001 | The owner received a tender from Dato’ Azizul Rahman bin Samad for RM545,000-00 |
| 23. | 5.12.2001 | The car was sold to Dato’ Azizul Rahman |
| 24. | 11.3.2002 | The owner received the sales proceeds of RM545,000-00. |
The parties further agreed on salient facts. Under the hire-purchase agreement dated 24.7.1999 for the hire of the vehicle, the hirer agreed to pay the owner 60 monthly installments of RM15,750.00 each starting from 24.8.1999. This agreement witnessed by a single witness is governed by the Hire-Purchase Act 1967 [Act 212]. The owner paid the dealer the balance purchase price of RM700,000.00. The vehicle was detained by the Royal Malaysian Customs and Excise Department on 5.11.1999. The owner is now Am Finance Berhad having acquired all the assets and entire undertaking of the former owner, Arab Malaysian Finance Berhad vide vesting order dated 21.5.2002. On the first day of trial, the name of the owner was further amended [orally] to AmBank (M) Berhad.
Three bundles of agreed documents marked respectively as A, A1 and A2 were also prepared. The parties had also narrowed the issues for determination to the following:
(a)Whether the owner
