A vehicle sold must meet merchantable quality standards; advertising claims cannot override established warranty conditions or the actual condition of the goods sold.

Headnote:(A) Companies Act 1965 - Sale of Goods - Breach of Warranty - The Plaintiff, a registered company, purchased a BMW from the Defendants claiming it was unroadworthy due to multiple defects—alleged breach of warranty was denied by the Defendants, who contended the vehicle was sold in good condition. (Paras 1-10)

(B) Duty of Care - The reputation of goods and reliance on advertisements - The Plaintiff's Managing Director’s reliance on marketing representations regarding the BMW as 'the ultimate driving machine' was critical in the purchasing decision. The issue of whether the vehicle met acceptable quality was central. (Paras 11-22)

Facts of the case:
Plaintiff claimed damages from the Defendants for breach of warranty regarding a BMW purchased for corporate use, alleging defects that were purportedly unaddressed by the seller. The Defendants argued that they had acted within warranty terms and denied the claims of unroadworthiness. (Paras 4-6)

Findings of Court:
The Court found no breach of warranty as the Plaintiff failed to provide sufficient evidence of the vehicle's unfitness or to substantiate claims regarding the persistent issues faced with the vehicle; the Plaintiff's claims were dismissed with costs. (Paras 23-29)

Issues: The Court addressed (1) whether the claim against the 1st Defendant was misconceived, (2) whether there was a breach of warranty by the 2nd Defendant, and (3) the counterclaim for storage charges. (Paras 30-32)

Ratio Decidendi: The Court determined no breach occurred as the vehicle conformed to warranty; the Plaintiffs did not prove their claims, and the warranty had lapsed before many complaints arose. Evidence from Defendants showed that repairs were adequately executed. (Paras 33-41)

Result: Plaintiff's claim dismissed; Defendants' counterclaim allowed with costs awarded. (Paragraphs 42-43)

Table of Content
1. plaintiff's ownership and dissatisfaction with vehicle (Para 1 , 2 , 3)

The Plaintiff is a company registered under the Companies Act 1965 with its principal place of business at Kawasan Perindustrian Bandar Kinrara, Puchong, Selangor and is the registered owner of a BMW 529iA bearing registration no. WJM4678.

The 1^st Defendant registered address is at Komplex Kejuruteraan Tractors, 1 Jalan Puchong Taman Perindustrian Puchong Utama, Selangor.

The Plaintiff purchased a BMW 520iA car from the Defendants on 21 September 2001 for the use of the Plaintiff's Managing Director and his wife. The Plaintiff claimed that the car is unroadworthy and unsafe to drive due to several mechanical and electronic problems that the Plaintiff had encountered while driving the said car. The Plaintiff's claims against the Defendants for the following:-

i. Damages for the breach of warranty of the BMW;

ii. Damages for the loss of prestige of the Plaintiff;

iii. Loss of use of the BMW in the sum of RM9600;

iv. Loss of road tax and insurance premiums of the BMW while it was in the workshop;

v. Replacement of a brand new BMW of the same series as the BMW purchased by the Plaintiff and the Defendants shall give an undertaking that it would indeed, truly be 'ultimate driving machine';

vi. Alternatively, to repay the plaintiff the sum of RM282,420.26 being the price of the BMW;

vii. Interest at the rate of 8% per annum on RM9600 from 26.4.2004 (the date when the Plaintiff purchased the Naza Ria) to the date of judgment;

viii. Interest on the judgment sums at the rate of 8% per annum from the date of judgment to the date of realization;

ix. Cost; and

x. Such further relief which the Court deem fit and proper to grant.

The Defendants stated that the 1^st and 2^nd Defendants are separate incorporated companies with separate legal entity. "Auto Bavaria" is a division of the 2^nd Defendant. The 1^st Defendant is not a division of the 2^nd Defendant. The 2^nd Defendant is in fact the seller, distributor and agent of BMW vehicles in Malaysia. The BMW Sungai Besi service centre at 330, Jalan Sungai Besi, 57100 Kuala Lumpur belongs to the 2^nd Defendant. The Defendants denied any breach of warranty or that the BMW was not safe, not reliable or not the ultimate driving machine. The BMW was delivered to the Plaintiff in good and merchantable condition and all the Plaintiff's complaints have been attended to and rectified by the 2^nd Defendant.

The 2^nd Defendant filed a counterclaim against the Plaintiff claiming storage charges of RM20.00 per day from August 2004 up to the date of collection or removal of the BMW from the 2^nd Defendant's workshop.

The Plaintiff's Case

The Plaintiff purchased the brand new BMW520JA from the 2^nd Defendant on September 2001. The purchase price of the said BMW 520iA was RM291,508.33. The BMW was duly delivered to the Plaintiff on 21.9.2001.

According to PW1 who is the Managing Director of the Plaintiffs company the Plaintiff bought the BMW car because PW1 was influenced by the world wide advertisement that described BMW cars as the ultimate driving machine. PW1 in his Witness Statement said:

"Q5. What attracted the plaintiff company to buy a BMW car in 2001?

A5. BMW had extensive worldwide advertisements, portraying that BMW cars were "the ultimate driving machine" which were safe, reliable, excellent, of high quality and comfortable.".

In his answer to Question 6 PW1 further explained the reason he was attracted to the BMW car:

"A6. When my wife and I were in the Sungai Besi BMW Centre, D1's sales personnel besides repeatedly assured us that BMW cars were safe, reliable, excellent, of high quality and comfortable, and also strongly recommended to us to purchase The Car; they also emphasizes the world wide slogans "the ultimate driving machine" to convince are that BMW was THE car that we must buy. In short, BMW's worldwide extensive advertisements, "the ultimate driving machine", and the strong recommendations of D1's salesmen and personnel, had in

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2011 MarsdenLR 4659

HIGH COURT MALAYA, KUALA LUMPURNATURES LAB SDN BHD – AppellantVersusAUTO BAVARIA SDN BHD & ANOR – Respondent[Suit No: D22-675-2005]

A vehicle sold must meet merchantable quality standards; advertising claims cannot override established warranty conditions or the actual condition of the goods sold.

HIGH COURT MALAYA, KUALA LUMPUR
NATURES LAB SDN BHD – Appellant
Versus
AUTO BAVARIA SDN BHD & ANOR – Respondent
[Suit No: D22-675-2005]