JUDGMENT

Mohd Noor Ahmad JCA:

The plaintiff claimed for the loss suffered as the result of the defendant's breach of contract in refusing to accept delivery of the goods ordered. The High Court found for the plaintiff. The defendant appealed.

The primary facts in the present case are beyond dispute. Briefly, under two contracts the plaintiff agreed to manufacture and sell to the defendant an entire duct manufacturing system including the computer software support system. The total consideration was US$627,500. The contract price included the 100-foot fiber optic cable (hereinafter referred to as "the foc"). The foc was an important component of the equipment and machinery. Under the terms of payment the defendant paid US$58,830.97 as deposit and as down payment with the orders confirmation of 27 April 1993 and 15 June 1992 and the balance by an irrevocable letter of credit to be settled by 15 August 1993 which the defendant failed to do. However, the plaintiff released to the defendant in September 1993 the said computer software although the plaintiff was not contractually bound to do so. Under the contracts the computer software support system, which formed an integral part of the equipment and machinery, and all the items ordered were to be delivered to the defendant only after full payment had been made. Then on 25 January 1994 the defendant informed the plaintiff of its decision not to complete the purchase. Subsequently, the plaintiff sold some of the goods to third parties in order to mitigate the loss.

In the court below the defendant raised four issues, viz:

(1) The goods ordered could not fit into the defendant's premises because the said goods were too large,

(2) the computer software was not fit for the purpose,

(3) the leakage factor, and

(4) the supply of the foc.

Before us, counsel for the defendant only raised issue (4) as the main thrust of his argument and two subsidiary issues viz(i) issue (2) and (ii) the anticipatory breach on the part of the plaintiff.

We realise and fully appreciate that the learned judge made his decision based purely on his findings of fact. Therefore, it is our duty to scrutinise the decision with great care and caution. For it is only in rare cases that an appellate court should interfere with the primary findings of fact made by the trial court. Counsel for the plaintiff submitted that the judge did not err in his conclusions based on the findings of fact and therefore, urged upon us not to interfere with them. On this point suffice that I refer to the well-known passage in the speech of Lord Dunfermline in Clarke v. Edinburgh Tramways[1919] SC (HC) 35 at p. 36 which states:

When a judge hears and sees witnesses and makes a conclusion or inference with regard to what on balance is the weight of their evidence, that judgement is entitled to great respect, and that quite irrespective of whether the judge makes any observations with regard to credibility or not. I can of course quite understand a Court of Appeal that says that it will not interfere in a case in which the judge has announced as part of his judgement that he believes one set of witnesses, having seen them and heard them, and does not believe another. But that is not the ordinary case of a cause in a court of justice. In courts of justice in the ordinary case, things are much more evenly divided; witnesses without any conscious bias towards a conclusion may have in their demeanour, in their manner, in their hesitation, in the nuance of their expressions, in even the turns of the eyelid, left an impression upon the man who saw and heard them which can never be reproduced in the printed page. What in such circumstances, thus psychologically put, is the duty of an appellate court? In my opinion, the duty of an appellate court in those circumstances is for each judge of it to put to himself, as I now do in this case, the question: am I - who sit here without those advantages, sometimes broad and sometimes subtle, which are th