DALAM MAHKAMAH RAYUAN MALAYSIA
(BIDANG KUASA RAYUAN) RAYUAN SIVIL NO: P-02-1635-2011 ANTARA
IJM CORPORATION BERHAD … PERAYU
1. ZAMRI BIN HAJI IBRAHIM
2. MOHD HANIF BIN ABDUL RAHMAN … RESPONDEN-
(Dalam Mahkamah Tinggi Malaya di Pulau Pinang Guaman Sivil No. 22-223-2009)
(dipindahkan daripada Mahkamah Sesyen Butterworth kepada Mahkamah Tinggi Pulau Pinang menurut Perintah Mahkamah Tinggi Pulau Pinang bertarikh 25.11.2008 di bawah Usul Pemula No. 25-76-2008)
IJM CORPORATION BERHAD … PERAYU
1. ZAMRI BIN HAJI IBRAHIM
2. MOHD HANIF BIN ABDUL RAHMAN … DEFENDAN-DEFENDAN
CLEMENT SKINNER, JCA ALIZATUL KHAIR OSMAN KHAIRUDDIN, JCA ROHANA YUSUF, JCA
JUDGMENT OF THE COURT
 This is an appeal against the decision of the High Court at Pulau Pinang, which came before us on 14.5.2013. The learned High Court Judge dismissed the claim of the plaintiff/appellant and allowed the counter-claim by the defendants/respondents. We have allowed the appeal of the appellant and we now give our reasons for our decision.
 The appellant was the developer of a development project known as Wisma Pantai at Jalan Wisma Pantai, Kampung Gajah, 12200 Butterworth. The respondents are advocates and solicitors. By a Sale and Purchase Agreement dated 06.05.1996, (“the Agreement”) they bought an almost completed office unit known as Unit 8-5 in a Building (“the Unit”) in the said project for a purchase price of RM324,700.00. The respondents paid a deposit equivalent to ten per centum of the purchase price in the sum of RM32,470.00.
 On 09.10.1996, the appellant purportedly sent a notice to the respondents informing them that the Unit was completed and that the appellant was ready to deliver vacant possession. In that letter the respondents were requested to settle all outstanding payments and outgoings, failing which, the respondents were deemed to have taken
vacant possession of the Unit upon the expiry of 14 days from the date of the said letter. Certificate of Fitness in respect of the Building was issued by Majlis Perbandaran Seberang Perai (“MPSP”) on 26.11.1996.
 On 27.08.1997, the appellant sent notice of progress payment directly to the respondents’ financier EON Finance Bhd, claiming for payment of the balance of the purchase price of RM292,000.00. The respondents through their solicitors Messrs. Azham Halim & Nor Asiah’s letter dated 17.9.1997 paid the appellant the full balance of the purchase price to complete the sale.
 The respondents did not pay the service charges, insurance charges, quit rent and assessment (the Charges) in the sum of RM105, 501.13 for the reason that vacant possession had not been delivered by the appellant. Despite repeated requests made by the appellant it remained unpaid. Hence the filing of this suit by the appellant.
 The learned Judge dismissed the appellant’s claim for the Charges because he found that there was no delivery of vacant possession of the Unit to the respondents. He allowed the counter-claim of the respondents for liquidated and ascertained damages for the same reason, that is, that there was no delivery of vacant possession. The
amount of the liquidated damages allowed pursuant to Clause 7.04 of the Agreement for late delivery of vacant possession of the Unit is the sum of RM467,568.00 for the period between 1997 to 30.9.2001.together with interest and costs
 The main issue before this court is whether vacant possession of the Unit had been delivered. This issue raises the question whether the notice of vacant possession dated 09.10.1996 (ID2) is admissible in evidence to prove that vacant possession had in fact been delivered to the respondents. This appeal will therefore turn upon our determination on whether the learned Judge had correctly appraised the law and the facts before him when he refused to admit in evidence the notice of vacant possession dated 09.10.1996 in ID2. This had accordingly resulted in his finding that there was no delivery of vacant possession of the Unit by the appellant to the respondents.
 Under the terms of the Agreement any notice to be given, including notice for delivery of vacant possession must be in writing (see Clause 9.19 of the Agreement) and must either be sent by hand or by prepaid registered post to the last known address of the purchaser. Once the notice is given and upon expiry of 14 days the purchaser is deemed to have taken vacant possession under Clause 7.05. It is the appellant’s
case that having served the respondent with the notice to deliver vacant possession dated 09.10.1996 and after the expiry of 14 days, vacant possession of the Unit is deemed to have been delivered to the respondents.
 The notice of 09.10.1996 was not admitted by the learned trial Judge and was marked as ID2 because its signatory Mr. Goh Chye Hin was not called as a witness. The learned Judge also found that there was no proof of posting of ID2 shown by the appellant. It was held by the learned trial Judge that the appellant cannot rely upon the various conduct of the respondents indicating that they were very much aware of ID2 to prove that the notice was received and the Unit was therefore deemed delivered. For these reasons he held that the respondents cannot be presumed to have taken delivery of the Unit. In the circumstances he found that the appellant had not delivered vacant possession of the Unit to the respondents.
 In considering the status of ID2 we note that Mr. Goh Chye Hin had left the company and his portfolio was taken over by Mr. Khoo Kah Hock (SP1). SP1 was then the Senior Manager of the appellant company. He testified relying on the appellant company’s record. From the company’s record he said ID2 was issued and was served on the
respondents. He could not produce proof of posting but he maintained that the notice in ID2 was indeed sent to the respondents. He confirmed so by checking it based on the system he had in his office.
 Learned Counsel for the appellant contended that there was misdirection by the learned Judge in rejecting ID2 in the light of s.73A and s.32 of the Evidence Act 1950. The appellant contended that the conduct of the respondents clearly show that the respondents were aware that vacant possession had been delivered, which would have supported the appellant’s case that ID2 had in fact been sent to the respondents. He contended the failure of the learned Judge to give weight to the conduct of the respondents is also another misdirection.
 We find merits in the submission of the appellant. Under s.73A of the Evidence Act 1950 (the Evidence Act) there are three circumstances under which a statement made in a document is admissible. They are:
i. where the maker is called to testify;
ii. where the maker is not available, the proviso to sub section (1) is satisfied;
iii. Where the maker is available but not called as witness, under the circumstances found in subsection (2)
 In the present appeal the maker of ID2 was not called to testify. Following s.73A (2) (a) of the Evidence Act the court may, if having regard to all the circumstances of the case it is satisfied that undue delay or expense would otherwise be caused, admit a document even if the maker is available but not called. The evidence of the existence of ID2 and its service was testified to by SP1 who had relied on his company’s records. SP1 testified that he was the person who took over from Mr. Goh Chye Hin and was in charge of the matter. It would naturally follow that he was charged with custody and control of the records of the company. These records, as they had been shown, include ID2 to which SP1 had access. This court in Allied Bank (Malaysia) Sdn Bhd v You Jiok Hua 3 CLJ 27, held that a notice of demand issued by the bank’s solicitor was admissible under s.73A even though the maker was not called to testify. The signatory to the notice of demand in the above case had left the firm and migrated to Australia. In the circumstances the Court of Appeal held that the trial judge would have discretion to admit such evidence in that case because the document was produced from the record of a law firm who had custody and control of it. In the case of Kubota Agricultural Machinery Sdn Bhd v Sharizan Sdn Bhd & Anor (Third Parties)  6 CLJ 59 the documents which were made in the ordinary course of business used in commerce and trade were held relevant under s.32(1)(b) of the Evidence Act and can be admitted under
s.73A because the maker cannot be produced without undue delay and
 SP1 in the present case confirmed that ID2 was from his company’s record to which he had access and control. We are also of the opinion that ID2 being a notice to deliver vacant possession is a document made in the ordinary course of business and is therefore relevant under s.32 (1)(b). In the light of s 73A in our view the learned Judge had misdirected himself in not admitting the document since it formed part of the record of the company considering that the whereabouts of Mr Mr. Goh Chye Hin cannot be ascertained by the appellant. SP1 testified that ID2 was sent to the respondents but he could not locate the proof of posting because his staff did not realize the significance of this proof till they encountered this case.
 We do not agree with the learned Judge that the presumption of service of ID2 cannot be based upon the subsequent conduct of the respondents. We find the subsequent conduct of the respondents relevant which would go to prove that the respondents were all the time aware of the notice in ID2.
 We find the following testimonies of SP1 revealing of the respondents’ stand on the notice in ID2. Firstly, the Building where the Unit is located comprised a number of units purchased by other purchasers. According to SP1 none of the other purchasers had complained about not receiving the notice for delivery of vacant possession of their respective units. The other purchasers had been either in possession of their respective units or had rented them out.
 Secondly, it was not disputed that the respondents’ financier EON Finance Berhad had paid the balance purchase price in full. The payment of the balance purchase price made was in the sum of RM292,000.00 through their solicitors, Messrs. Azham Halim & Nor Asiah, by a letter dated 17.9.97. This cannot happen without the knowledge and the instruction of the respondents. Further, the respondents would have known of this fact since they would have had to pay the monthly instalments for the loan in full and not for the sums so released progressively. Under the Second Schedule of the Agreement the balance of the purchase price would have to be settled only upon the delivery of vacant possession of the Unit. It is inconceivable that the respondents would authorise their financier to pay if they were not aware that the Unit was already completed and vacant possession had been delivered.
 Thirdly, about one month after paying the balance of the purchase price, the respondents vide their letter of 17.10.97 appealed to the appellant for a waiver on the late payment charges imposed on them. In the said letter the respondents explained their difficulties in obtaining financing which had caused delay in their payment of the full purchase price. They said they were financially constrained because at that material time they were newly established as a firm and they needed funds for capital expenditure.
 In our view these are compelling reasons to show that the respondents were aware that delivery of vacant possession of the Unit had taken place. The learned Judge, if he had not misdirected himself, would have accepted that the notice of vacant possession had in all probability been given and that the respondents were fully aware of its existence and accordingly by virtue of Clause 7.05, vacant possession would have been deemed delivered after 14 days.
 We are mindful that we are not at liberty to disturb findings of facts by a trial Judge unless the finding is erroneous and is contrary to the weight of evidence or where there is failure of judicial appreciation of facts or law or that the error is so manifest that it had caused injustice to
the appellant, all of which warrant appellate intervention. In our view the findings of the learned Judge in the present case were not specific findings of ostensible facts but facts, which could be inferred from specific facts. For that reason we are not restrained by virtue of s.69 (4) of the Court of Judicature Act 1964 to form our own opinion on the conclusion.
 There is no dispute that the Charges would be due but for the learned Judge’s finding of non-delivery of vacant position. The respondents did not dispute the amount owing as set out in the Statement of Accounts. The counter-claim of the respondents which was premised on the consequence of delay in the delivery of vacant possession should stand dismissed.
 Accordingly we made the following orders:
1. We set aside the order of the High Court and we entered judgment for the Appellant for the sum of RM105,501.13 (as at 31.12.2011) for the outstanding service charges, quit rent and assessment plus 4% interest from date of judgment at the High Court which was on 3.6.2011.
2. We ordered the respondents to refund to the appellant the sum of RM470,744.00 being judgment sum of RM467,568.00 together with interest of RM3176.00 within 30 days from the date of decision
 We awarded costs at RM40,000.00 to the appellant here and below with deposit paid by the appellant to be refunded.
Court of Appeal Malaysia Dated: 11 OCTOBER 2013
Counsel for the Appellant: Encik JJ Chan
Tetuan Shearn Delamore & Co Peguambela & Peguamcara Tingkat 6, Wisma Penang Garden No. 42, Jalan Sultan Ahmad Shah 10050 PULAU PINANG
Counsel for the Respondent: Encik Mohd. Hanif
Tetuan Zamri Ibrahim & Co. Peguambela & Peguamcara 11, Lorong Bagan Luar 2 12000 Butterworth PULAU PINANG