ALASAN PENGHAKIMAN

OLEH YANG ARIF HAKIM TUAN STEVE L K SHIM

(LAMPIRAN 1)

The factual background to this counter-claim lodged by the 1st defendant against the plaintiff can be briefly stated. The plaintiff had filed a writ of summons dated 25.9.1996 against the 1st and 2nd defendants for the sum of USD205000/- concerning the sale and delivery of 2 units of factory machines known as CNC [2] Lathes Model (V-Turn 36/85 S/N: D1-1312, 1315) (hereafter referred to as "the machines"). Whilst the 1st defendant entered an appearance to the writ, the 2nd defendant did not, as a result of which judgement for non-appearance was entered against the latter on the application of the plaintiff. Thereafter on 20.12.1996, the plaintiff took out an Order 14 application for summary judgement against the 1st defendant for the sum of USD205000/- with interest and costs. The learned Senior Assistant Registrar who heard the application allowed it in terms thereof. What was hitherto left for determination was the counter-claim of the 1st defendant against the plaintiff for damages allegedly suffered as a result of the late delivery of the machines by the plaintiff to the 1st defendant. This counter-claim is now ventilated before me in a trial proper.

Now, it is the 1st defendant's case that under a sales agreement described as a sales confirmation dated 26.1.1995 entered into between the plaintiff and the 1st defendant, there was a contractual obligation on the part of the plaintiff to deliver the 2 units of machines described above to the 1st defendant in early April 1995 but that the plaintiff had breached this [3] obligation by delivering them 44 days late resulting in production losses to the 1st defendant amounting to RM990,000/-. The plaintiff's defence to the counter-claim, as disclosed in its pleadings, can be stated as follows:

(1) ;that there was no delay in the delivery of the machines under the sales confirmation dated 26.1.1995;

(2) ;that the machines were unlawfully seized or confiscated by the 1st defendant and

(3) ;that there is no merit in the counter-claim which constitutes an abuse of the process of the court.

In my view, the first two points can be dealt without much difficulty. From the correspondence between the plaintiff and the 1st defendant, it seems clear that the plaintiff was supposed to deliver the machines to the 1st defendant in early April 1995 but this dateline was apparently altered to mid April 1995 with the consent or agreement of the 1st defendant. This is conceded by counsel for the 1st defendant who [4] says that the 1st defendant had condoned the delay in the delivery of the machines when it agreed that the said delivery could be effected not later than mid April 1995. This is also reflected in the testimony of Yap Weng Yew PW1, the assistant general manager of the 1st defendant. In any event, the documents have disclosed that the machines were actually shipped by the plaintiff from Taiwan at the end of April 1995 arriving at Port Klang in about mid-May 1995 and it was on or about 22.5.1995 that the 1st defendant actually took delivery of the same. However, it would appear that for the purposes of this counter-claim, the 1st defendant has, through the evidence of Yap Weng Yew PW1, admitted that the term "delivery" refers to the date of the shipment of the machines in Taiwan. That being the case, as the machines were shipped towards the end of April 1995, this would mean there was a delay of about 2 weeks in the "delivery" of the machines. Given those circumstances, to contend there was no delay at all would quite obviously run counter to the established evidence both oral and documentary.

The other point about the machines being unlawfully seized by the 1st defendant is clearly not [5] supported by any evidence at all. Neither the witnesses called by the plaintiff nor counsel in his submission touched on this averment. Quite obviously, it has no merit whatsoever.

The 3rd point that there is no merit in the counte