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JUDGMENT
Introduction
[1] This appeal stems from the decision of the High Court ordering the defendant to pay to the plaintiff the sum of RM283,500.00 being adjustment for iron (Fe) content, RM54,432,00 being adjustment for moisture content and RM3,227.00 being the defendant's portion of the charges for obtaining the analysis report in respect of iron ore supplied by the defendant.
[2] On 27 January 2015, we heard submission of counsel for the parties. After perusing the written submissions and record of appeal, we allowed the defendant's appeal with costs. The grounds of our decision are as follows. For convenience, the parties shall be referred to as they were in the Court below.
Brief Account Of The Salient Facts
[3] Pursuant to a written agreement for the sale and purchase of iron ore dated 28 february 2012 ("the Contract"), the defendant agreed to sell and the plaintiff agreed to buy 10,000 MT (+/10% at buyer's option) of iron ore 0-50mm FE 54% at the price of RM140.00 per wet metric ton (WMT) Ex-Seller Mining Site.
[4] At the plaintiff's request, the defendant sent the iron ore shipment to the Malacca Port to be loaded onto the vessel MV Christina for shipment to China. A total of 8,100 MT was loaded on the said vessel.
[5] The plaintiff paid the defendant a total sum of RM1,376,000.00 for the iron ore shipment (RM1,134,000.00) and other charges (RM242,200.00).
[6] A total of 6 composite samples of the iron ore were taken at the loading port. One such sample was sent to SGS laboratory Services (M) Sdn Bhd ('SGS') for analysis. According to SGS' Analysis Report dated 24 April 2012 ("the 1st SGS Report"), the Fe content was 50.5% and moisture content was 12.8%. SGS also issued a Certificate of Quality dated 26 April 2012 certifying that analysis results.
[7] At the defendant's request, SGS conducted another test at the loading port. According to SGS' Analysis Report dated 4 May 2012 ("the 2nd SGS Report"), the Fe and moisture content were consistent with that of the first SGS Report.
[8] On 4 May 2012, the plaintiff and the defendant signed a document (exh. P7) whereby it was agreed that they would accept the 2nd SGS Report "as final analysis standard and calculation for the payment."
[9] The plaintiff's claim for the price adjustments for iron and moisture content is premised on cl 6 of the Contract which provides for price adjustment.
Finding Of The Learned Judicial Commissioner
[10] The findings of the learned Judicial Commissioner (JC) may be summarized as follows:
(i) the Contract is not a conditional contract. cl 9 of the Contract does not make it a condition precedent for the plaintiff to have the iron ore tested by SGS before the Contract can be executed;
(ii) the plaintiff had the option to have the iron ore inspected by SGS at the mining site;
(iii) the plaintiff is entitled to have the iron ore inspected at the loading port under cl6;
(iv) the words "each shipment" and "cargo" in cl 6 under the heading "Price Adjustment for Fe content based on SGS report" refers to the iron ore at the loading port;
(v) based on cls 6 and 14 of the Contract, there must be price adjustment for Fe content based on the 2nd SGS Report at the loading port;
(vi) the fact that no pre-shipment inspection was done does not entitle the plaintiff from asking for the price adjustment for the Fe content based on the 2nd SGS Report at the loading port; and
(vii) the subsequent conduct of the defendant shows that the defendant agreed to the price adjustment for the Fe content
Submission Of Parties
[11] Learned counsel for the defendant argued that cl 9 is a pre-shipment inspection clause. It is for the plaintiff to satisfy itself that the iron ore was according to specifications prior to delivery of the iron ore Ex-Seller Mining site. The plaintiff did not have the iron ore inspected by SGS at the mining site pursuant to cl 9.
[12] Learned counsel also argued that the plaintiff is not entitled to claim for the
