GROUNDS OF JUDGMENT

This is a case after a full trial where the subject matter is a tipper lorry. The Plaintiff, as the purchaser, sues the Defendants for breach of contract and/or a repudiation of the contract. The Plaintiff claims the Defendants failed to deliver the tipper lorry in a roadworthy and good working order and condition, and additionally failed to deliver within the stipulated time agreed between the parties. The Defendants on the other hand counterclaim against the Plaintiff for specific performance of the agreement and the sum of RM3,620.00 being the cost of additional works done on the tipper lorry.

The Plaintiff claims that judgment be entered against the Defendants for the following: (a) refund of the deposit and/or part payment of RM24,160.00 paid by the Plaintiff to the Defendants; (b) a sum of RM53,025.00 being the cost for hiring a replacement lorry for the period 9.10.2004 to 31.1.2005; (c) repair costs of RM464.00; (d) interest at 8% per annum on the sum awarded by the court from the date of filing of the action until date of full and final settlement.

Three witnesses were called for the Plaintiff, as against two for the Defendants.

The Plaintiff cites provisions in the Sales of Goods Act, namely:

(i) Section 17 in relation to sale by sample;

(ii) Section 16(1)(a) and (b) in relation to implied condition as to quality of fitness;

(iii) Section 12(2) in relation to breach of a condition which is an essential stipulation and the main purpose of the contract;

(iv) Sections 41 and 42 in relation to the right to examine and reject the goods.

In summary the Plaintiffs case can be stated thus: he purchased the lorry by looking at the sample provided by the Defendants; the lorry that was delivered did not conform to the sample and therefore was in breach of the impled condition that the lorry supplied should correspond to the sample in quality, and the lorry should be free from any defect rendering it unmerchantable which would not be apparent on reasonable examination of the sample; the lorry was thus delivered not in a roadworthy and good working order and condition; it was delivered four months later than contracted; and was wholly unfit for the purpose known or disclosed to the Defendants, namely that the Plaintiff required the tipper lorry for his construction work in relation to a water pipeline project.

The Plaintiff says the Defendants were informed of the necessary repairs that needed to be done to the tipper lorry to render it in a roadworthy and good working condition so as to be fit for the purpose for which the Plaintiff intended it, but the Defendants did not do the necessary repairs in full.

The Defendants, on the other hand, deny there was a sale by sample, and state categorically that what the Plaintiff was shown was not a sample but the actual tipper lorry that he purchased. Further, all the necessary repairs were done and the lorry was in a roadworthy condition. The Defendants also deny they were informed of the purpose for which the lorry was intended.

The tipper lorry was also subject to a financing arrangement, but the evidence disclosed the Defendants requested the finance company to terminate the Hire Purchase Agreement and to regard the deposit paid as forfeited. It appears the registration card has remained in the possession of the finance company so that the Defendants has not been able to sell off the tipper lorry to mitigate losses.

The tipper lorry was returned to the Defendants by the Plaintiff. The Plaintiff has not at any time acknowledged delivery by signing on the delivery order despite being requested to do so by the Defendants.

This is a case where the main facts are fiercely contested by the parties. The credibility and veracity of the evidence, both testimonial and documentary, and the inherent probabilities in relation to the evidence advanced by each side, are crucial.

The Defendants say the Plaintiff changed his mind to purchase a tipper lorry for reaso