Hashim Hamzah J:

JUDGMENT

INTRODUCTION

[1]For ease of reference, the parties in the present appeal shall be referred as they were in the Sessions Court.

[2]This is an appeal by the Defendant against the decision of the learned Sessions Court Judge (“SCJ”) in allowing the Plaintiff’s claim for breach of contract.

BRIEF FACTS

[3]Briefly, the facts are as follows.

[4]The Plaintiff sold ten motor vehicles which were all registered and delivered to the Defendant. The total purchase price was RM 1,564,788.00.

[5]The Plaintiff claimed that all ten motor vehicles were registered and delivered to the Defendant upon the Defendant’s assurance and undertaking that the outstanding amount will be paid upon obtaining a loan from a bank.

[6]It was the Plaintiff’s case that the Defendant, from 28.6.2010 until 19.8.2013 only paid RM 1,150,000.00 to the Plaintiff. There was an outstanding balance of RM 414,788.00 which was still due to the Plaintiff.

[7]The Defendant, on the other hand, contended that full payment of the purchase price had already been paid to the Plaintiff prior to the registration and delivery of the ten motor vehicles. Thus, the Defendant contended that there was no debt owed to the Plaintiff.

[8]After full trial, the learned SCJ on 22.12.2016 had allowed the Plaintiff’s claim with cost. Dissatisfied with the learned SCJ’s decision, the Defendant filed this appeal.

LAW ON APPEALS

[9]It is trite law that even though an appeal is by way of a rehearing, an appellate court will not normally disturb the finding of fact made by the trial court.

[10]This is especially so when the issues raised are primarily factual issues rather than legal issues (see Huo Heng Oil Co v. Tang Tiew Yong [1984] 1 LNS 45;; Voon Jan Choo v. Lee Chie Siang & Anor

[11]The law is also clear that an appellate court may interfere if the decision of the trial court is plainly wrong (see Gan Yook Chin & Anor v. Lee Ing Chin & Ors APV Hill & Mills Sdn. Bhd. v. AQ-Pacific Wide Sdn Bhd & Anor

[12]It is also an established principle of law that an appellate court does not make any finding of fact but merely reviews the finding of primary fact made by the trial court. Different inferences however may be drawn by the appellate court based on the same facts (see Yong Nyee Fan and Sons Sdn Bhd v. Kim Guan and Co Sdn Bhd [1978] 1 LNS 244;; Eng Thye Plantation Bhd v. Lim Heng Hock & 4 Ors

[13]Bearing all these principles of law in mind, I now turn to consider the issues raised by both parties in the present case.

ISSUES

[14]In the present appeal, the issues raised by the Defendant can be summarised as follows:

a.whether the Plaintiff’s claim was illegal under the Hire Purchase Act 1967 (Revised 1978) (“HPA 1967”);

b.whether the Plaintiff’s claim was time-barred under the Limitation Act 1953 (Revised 1981) (“Limitation Act 1953”);

c.whether the Plaintiff had failed to prove its claim on the balance of probabilities;

d.whether the learned SCJ had erred in his failure to invoke adverse inference against the Plaintiff under section 114(g)Evidence Act 1950

e.whether adverse inference against the Defendant was wrongfully invoked;

f.whether the learned SCJ had erred in his failure to presume that full payment was already paid upon registration of the ten motor vehicles in the Defendant’s name.

WHETHER THE PLAINTIFF’S CLAIM WAS ILLEGAL UNDER HPA 1967

[15]It was submitted by the learned counsel for the Defendant that the Plaintiff’s claim was illegal since there was non-compliance with the HPA 1967.

[16]However, I am of the view that HPA 1967 was not applicable to the dispute between the Plaintiff and the Defendant in the present case. HPA 1967 covers a hire-purchase agreement made between a dealer, a hirer and an owner where the owner lets the said goods to the hirer who furnished payments to the dealer for the said goods. There was no such agreement in the present case.

[17]I also found that the learned SCJ had correctly made the following finding and observation that the Plaintiff’s claim against th