1. Appeal against judgment for goods sold and delivered and a dismissed third-party indemnity claim. (Para 1 , 2 , 3 , 4 , 5 , 6 , 7 , 8 , 9 )
Back
Next 
2026 MarsdenLR 921
HIGH COURT MALAYA JOHOR BAHRU
NOOR HISHAM ISMAIL, J
REGAL ELITE LETRIK SDN BHD – Appellant
Versus
EPE POWER SWITCHGEAR SDN BHD & ANOR – Respondent
[Civil Appeal No: JA-12BNCC-6-09/2024]
Legal Category Hierarchy
- civil procedure
- contract law
- evidence
- agency
- remedies
-
commercial law
-
sale of goods
- price (Para 13)
-
sale of goods
Table of Contents
2. Plaintiff claimed balance payment; defendant claimed agency and pay-when-paid term; third party denied agency. (Para 4 , 5 , 6 )
3. Court upheld liability for goods accepted without objection; reversed third-party dismissal finding agency on evidence. (Para 13 , 14 , 15 , 16 , 17 , 18 , 19 , 20 , 21 , 22 , 23 , 24 , 25 , 26 , 27 , 28 , 29 , 30 , 31 , 32 , 33 , 34 , 35 )
4. An appellate court intervenes when trial findings are plainly wrong or involve insufficient judicial appreciation. (Para 10 , 11 , 12 )
5. Dismissed appeal on plaintiff's claim; allowed appeal on third-party claim with indemnity and costs. (Para 36 , 37 )
6. What is the standard of appellate intervention in findings of fact?
An appellate court will intervene only if the trial court is plainly wrong or has no/insufficient judicial appreciation of evidence. (Para 10 , 11 , 12 )
7. When does a party's silence on contract terms create an implied agreement?
Failure to object to terms after acceptance of goods can imply agreement, especially where a businessman would ordinarily refute injurious propositions. (Para 14 , 15 , 21 , 22 , 23 )
8. What constitutes an estoppel under section 115 of the Evidence Act 1950?
A person who by declaration, act, or omission causes another to believe a thing and act on it cannot later deny the truth of that thing. (Para 17 , 18 , 19 )
9. When does a right to indemnity arise outside of an express contract?
A right to indemnity arises when the relationship, such as agency, imposes a legal or equitable duty to indemnify. (Para 34 , 35 )
10. What evidence supports a finding of an agency relationship for indemnity?
Direct involvement in pricing, issuance of purchase orders on another's behalf, direct delivery to the principal, and financial commitment through a variation order. (Para 26 , 27 , 28 , 29 , 30 , 31 , 32 )
JUDGMENT
Introduction
[1] In this appeal, there are three parties in the equation. They will be referred to as they were at the Sessions Court.
[2] The plaintiff (1st Respondent) claimed against the defendant (Appellant) for goods sold and delivered.
[3] The defendant on the other hand took out third-party proceeding against the 3rd Party (2nd Respondent) for indemnity.
[4] In essence, the plaintiff's claim against the defendant is for the balance price of the goods sold and delivered to the defendant for the sum of RM812,783.90 together with interests and costs.
[5] The defendant's defence is that any payment to the plaintiff is subject to them receiving the same from the 3rd Party since they were only agents for the 3rd Party in respect of the transaction concerning the plaintiff's claim against them.
[6] The 3rd Party on other hand denied the defendant's indemnity claim against them and stated that the defendant was never their agent.
[7] During the trial before the Sessions Court, the plaintiff called Long Yin Feai (SP1) and Lai Yaw Tyng (SP2) as their witnesses. The defendant meanwhile called Dato' Seri Liew Choon Kin (SD1) and Dato' Nazli Sam Bin Mohd Nasir (SD2) as their witnesses. The 3rd Party on the other hand elected not to call any witness on their behalf and chose to rely on the plaintiff's witnesses instead.
[8] At the conclusion of the trial, the Sessions Court allowed the plaintiff's claim against the defendant. The defendant's claim for indemnity against the 3rd Party was however dismissed.
[9] Hence, the appeal herein by the defendant against the whole of the said decision by the Sessions Court Judge ("SCJ").
Duty Of Court Exercising Appellate Jurisdiction
[10] It is trite that this Court in the exercise of its appellate jurisdiction would intervene when the findings of the Sessions Court is either plainly wrong or where there is no or insufficient judicial appreciation by the Sessions Court.
[11] Reference on this can be made to UEM Group Bhd v. Genisys Integrated Engineers Pte Ltd & Anor [2010] 2 MLRA 668; [2018] MLJ (Supp) 363; [2010] 9 CLJ 785 where it was held by the Federal Court at p 800 that:
"Thus, the prime issue in respect of Questions 1 to 3 is whether the Court of Appeal had erred in interfering with the findings of facts of the trial judge. It is well settled law that an appellate Court will not generally speaking, intervene with the decision of a trial Court unless the trial Court is shown to be plainly wrong in arriving at its decision. A plainly wrong decision happens when the trial Court is guilty of no or insufficient judicial appreciation of evidence."
[12] Further, it is also worth noting that the failure of the Sessions Court to construe crucial evidence or to properly analyze the entirety of the evidence would also cause appellate intervention on appeal [refer: Azman Mahmood & Anor v. SJ Securities Sdn Bhd [2012] 4 MLRA 595; [2011] 4 ILR 28; [2012] 6 CLJ 573; Lee Ing Chin & Ors v. Gan Yook Chin & Anor [2003] 1 MLRA 95; [2003] 2 MLJ 97; [2003] 2 CLJ 19; [2003] 2 AMR 357].
Whether P Is Entitled To Claim Sum Of RM812,783.90
[13] In determining that the plaintiff is entitled to claim a sum of RM812,783.90 from the defendant, the SCJ held as follows:
"[16] EPE telah menyerahkan SSU 33KV dan Perintah Penghantaran untuk SSU 33KV tersebut telah diakui diterima oleh Regal Elite. Saksi defendan juga mengesahkan terdapat baki bayaran sebanyak RM812,789.90. Justeru itu, Mahkamah berpendapat bahawa EPE sememangnya berhak menuntut baki bayaran sebanyak RM812,783.90 tersebut daripada Regal Elite."
[14] The SCJ's finding above seemed to have found support from the evidence of SD1 when he admitted in cross-examination that the defendant did not raise any issue upon receiving the goods in question and chose to keep silent on it despite the plaintiff having made very clear that they were not agreeable to any "pay when payment term" as alleged by the defendant. Further, that such payment was due within 6
