JUDGMENT

Low Hop Bing JCA:

Appeal

[1] Parties are referred to in their capacities in the High Court.

[2] The plaintiff's appeal is against:

(1) the dismissal of its claim for damages; and

(2) the granting of the defendant's counterclaim for RM31,338.41 as at 29 February 2000.

The Facts

[3] The trial has led to the following finding of facts by the learned judge.

[4] On 28 May 1996, the plaintiff and the defendant entered into an agreement for the sale and purchase of a used machine, an "Ingersoll-Rand CM351 Crawler Drill c/w VL140 Drifter Serial No. V93415" ("the machine") at RM130,000, subject to the terms and conditions contained in the purchase order No. BW 3755 signed and accepted by the plaintiff which, at the bottom left thereof, states "we have read and agreed to the Sales Conditions stated overleaf".

[5] In line with the defendant's industry practice, the defendant had through its employees conducted checks on all machines (new or used) including the machine so as to ensure that they corresponded with the description that was contracted for. Sam Siew Kooi, defendant's service manager (DW1) had personally inspected the machine and verified, by using the visual/fing