Itdistribution Sdn Bhd V Jardine One Solution (2001) Sdn Bhd

  

Download PDF Here

IN THE HIGH COURT OF MALAYA AT KUALA LUMPUR (COMMERCIAL DIVISION)

 

SUIT NO. D22-NCC-362-2009

 

BETWEEN

 

ITDISTRIBUTION SDN BHD … PLAINTIFF

 

AND

 

JARDINE ONE SOLUTION (2001)

 

SDN BHD . DEFENDANT

 

GROUNDS OF DECISION

 

BEFORE HIS LORDSHIP TUAN ANANTHAM KASINATHER JUDGE HIGH COURT MALAYA

 

KUALA LUMPUR IN OPEN COURT

 

Konsortium Jaya Sdn Bhd (‘KJSB’) was awarded a contract by Petronas, to supply and deliver computer products like personal computers and note book with the brand name Hewlett Packard (HP) (‘the products’). KJSB, in turn, by an agreement dated 6th September 2005 appointed the Plaintiff to supply the products for onward delivery to Petronas. To meet its obligations to KJSB, the Plaintiff placed purchase orders (‘PO’) with the Defendant. As Petronas only paid for the products on the expiration of 120 days, the Plaintiff financed the purchase from the Defendant since the Defendant only

 

1

 

provided the Plaintiff with a 30 day credit limit. The financial returns to the Plaintiff in this transaction was the difference in the price quoted by it to KJSB and the price at which it purchased the products from the Defendant. For the purposes of this judgment, the price at which the Plaintiff sold KJSB will be described as the list price and the price at which the products were purchased by the Plaintiff from Defendant as the cost price. The difference between the list price and the cost price representing the profit derived by the Plaintiff (‘profit margin’).

 

Sometime in June 2008, when the contract between the Plaintiff and KJSB was still subsisting, the Plaintiff exceeded its credit line with the Defendant resulting in the Defendant placing a credit hold on the Plaintiff. The imposition of the credit hold meant that the Plaintiff could no longer finance KJSB in the purchase of the products. This development caused KJSB to want to bypass the Plaintiff and purchase the products directly from the Defendant. The Plaintiff was agreeable to this conditional on it being able to retain its profit margin (see Question (Q) & Answer (A) 8 of WSPW 2). KJSB was agreeable to this condition (see Q & A 11 & 12 of WSPW 1).

 

The Plaintiff thereafter entered into negotiations for the Defendant to supply the products directly to KJSB but at the list price. The condition imposed by the Plaintiff for the Defendant dealing directly with KJSB was that at the end of the three

 

2

 

month period of July to September 2008, the aggregate of the profit margin for this three month period was to be paid by the Defendant to the Plaintiff (see Q & A 11 of WSPW 2). According to PW 1, its then chief executive officer, one Encik Shahrul informed him that the Defendant agreed to this condition (see Q & A 11-12 of WSPW2). Apparently, the Defendant which was represented by several senior management staff during these negotiations, only demanded, in exchange, that it be allowed to deduct 3% of the profit margin towards account of its finance costs (see Q & A 7-9 of WSDW 2).

 

KJSB, then proceeded to place PO directly with the Defendant and supplied the products to Petronas (see Q & A 16 of WSDW1). It is not in dispute that the price stated in the PO submitted by KJSB during this three month period is the list price save that DW2 claimed that she did not know of this fact until reconciliation took place at the end of each month. According to the Plaintiff, the only contentious issue which arose between the Plaintiff and the Defendant during this three month period were two instances when KJSB sought to buy the products on a cash basis from the Defendant. In the case of cash transaction, KJSB insisted that the Defendant supply the products at the cost price. KJSB in its email of 2nd July 2008 indicated that it would ‘discuss and settle all matters with ITD for this arrangement’ (Exh. 2 of B2). This necessitated the revelation of details of the cost price to KJSB, which the

 

3

 

Defendant refused, without the consent of the Plaintiff. This resulted in an exchange of emails between the Plaintiff and the Defendant (see Q & A 21 of WSPW 1 and Exhs. 1&2 of B2). It is significant that the Plaintiff when granting its approval to the disclosure of the cost price for this particular cash transaction insisted that ‘any further order in this manner must seek our approval’ (Exh. 1 of B2). Following the imposition of this condition by the Plaintiff, Ms. Cheong (DW2), on behalf of the Defendant, did seek the Plaintiff’s approval for another cash purchase vide email of 7th July 2008 (Exh. 3 of B2). The Plaintiff consented to this vide its email of the same date (Exhs. 4 & 5 of B2).

 

The next development in the relationship between the Plaintiff and the Defendant was the issuance of two invoices by the Plaintiff to the Defendant in January and February 2009 (Exh. 13 & 14 of B1). The payment terms under these two invoices was 30 days. The invoices were followed by an email from Shahrul, on the afternoon of 4th March 2009, addressed to Ms. Cheong (DW 2), setting out the terms of the Oral Agreement and seeking payment of one of the overdue invoices. This email, additionally, sought the Defendant’s confirmation of the profit margin and required the Defendant to revert on any discrepancies in the list of PO, since the details of the PO had been furnished by KJSB (Exh. 3 of B3). DW2, the following day, without, in any way, refuting the existence of the Oral Agreement or its terms, questioned the inclusion in the

 

4

 

claim for the profit margin of several invalid PO and of cash transactions. The final advice from DW2 being that, perhaps, the Plaintiff should revert to KJSB on the accuracy of the list of the PO (Exh. 3 of B3). A revised list after reconciliation with KJSB was forwarded by Shahrul to Ms. Cheong on 2nd April 2009 (Exh. 21 of C). Ironically, the first reference to the Defendant disputing the Oral Agreement appears in Shahrul’s email of 23rd June 2009 (Exh. 20 of C) and not in any of the emails originating from the Defendant. From this email, it is safe to conclude that the first time the Defendant disputed the Oral Agreement was in a conversation with Shahrul just before his email of 23rd June 2009.

 

The Plaintiff’s case

 

The Plaintiff was unable to obtain the presence of Encik Shahrul in Court. The Plaintiff, instead, called its owner and present CEO, Encik Nor Azman bin Abdullah (PW2). The Plaintiff also called as its witness, Encik Nor Azman bin Abdullah, a director of KJSB (PW1). The Plaintiff’s claim is based on two oral agreements. The first is between the Plaintiff and KJSB and the second between the Plaintiff and the Defendant. In respect of the 1st agreement, the Plaintiff’s case is that, in June 2008, it was no longer able to finance the purchase of the products from the Defendant, as it had defaulted in the payment of the Defendant’s invoices. KJSB, then, approached the Plaintiff seeking to bypass the Plaintiff in the purchase of the products from the Defendant. The Plaintiff

 

5

 

agreed provided its profit margin was protected. This meant that KJSB would have to quote the list price as opposed to the cost price when purchasing the products from the Defendant. KJSB was agreeable to this condition thereby giving rise to the first oral agreement. Neither KJSB nor the Defendant dispute the first oral agreement.

 

In respect of the second oral agreement, the Plaintiff’s case is that upon securing KJSB’s agreement, it then approached the Defendant and informed them that, henceforth, KJSB would be buying the products directly from the Defendant but at the higher list price. The Plaintiff’s representative, one Encik Shahrul then sought to negotiate with the Defendant’s representative, one Ms. Cheong (DW2) concerning the payment of the profit margin by the Defendant to the Plaintiff. The Plaintiff’s offer was simple. In consideration of it allowing KJSB to purchase the products directly from the Defendant, the Defendant was to pay the Plaintiff the profit margin in respect of all products purchased by KJSB during the period July to September 2008 (inclusive of both months). Presumably because Ms. Cheong did not have the necessary authority to represent the interest of the Defendant during these negotiations, the Assistant Finance Controller of the Defendant, one Mr. Bernard Yee also participated in the negotiations. According to the Plaintiff, the negotiations held in June and early July 2008 resulted in the conclusion of the second oral

 

6

 

agreement. The terms of this second oral agreement are as follows:

 

a) The Defendant to pay the Plaintiff the profit margin for all PO originating from KJSB quoting the list price for the products for the period July to September 2008 (inclusive of both months) and

 

b) The Defendant to retain 3% of the profit margin as its finance cost.

 

The terms of the oral agreement were varied thereafter to exclude PO forming the subject matter of cash transactions. This was logical since cash transactions were based on cost price.

 

The Defendant’s case

 

DWI’s version of the second oral agreement is that KJSB approached them for the direct supply of the products, without the Plaintiff’s involvement (see Q & A 13 of WSDW1). It is also the evidence of DW1 that the Defendant was not prepared to consider the Plaintiff’s requirement that it protect and pay the profit margin because such a payment takes the form of a commission and the payment of a commission to a third party could be construed as a form of corruption (see Q & A 14 and 18 of WSDW 1). Accordingly, DWI’s version is that the matter did not progress beyond the discussion stage (see Q & A 17 of

 

7

 

WSDW 1). DW2 echoes the evidence of DW1 in her answer to question 12 by asserting that no conclusion was reached and claimed that she had orally informed the Plaintiff of the need for her to obtain management approval. DW2 also claimed that she was unaware that KJSB were paying the higher list price commencing July 2008 until recently (see Q & A 17 of WSDW2). DW2 like DW1 questioned the genuineness of the Plaintiff in raising its claim for the first time some 5 to 6 months after the accrual of the claim (see Q & A 20 of WSDW 2). DW2 did not dispute that the Assistant Finance Controller, Mr. Bernard Yee also participated in the negotiations and conceded that Mr. Yee had requested for 3% finance cost if the Plaintiff’s request for the profit margin was approved by its parent company. As regards the approval of the parent company, DW1 in his answers to Questions 20 and 21 claimed that he had requested for such approval and did not receive the approval. However, under cross examination, the only evidence proffered by DW2 concerning approval from the parent company, was a discussion that he had with Mr. Collin, the Finance Director in Hong Kong. In answer to a question from Counsel for the Plaintiff as to whether any request for approval in writing had been sought from Hong Kong, DW2 could only recall having asked Mr. Yee ‘to put it forward’. He had no knowledge as to whether Mr. Yee had, in turn, put forward this proposal to Hong Kong.

 

8

 

Evidence of oral agreement

 

I do not propose to deal with the first oral agreement as the same is not disputed by the Defendant. As regards the second oral agreement, the Plaintiff relies on the oral evidence of PW 1 and PW 2; the emails exchanged with the Defendant in July 2008; its invoices for the profit margin of January / February 2008; the emails exchanged with the Defendant from March to June 2009 and the Defendant’s response to the Plaintiff’s letter of demand (Exh. D1).

 

Law on oral agreement

 

A Plaintiff seeking to enforce an Oral Agreement invariably has to overcome another version of the same agreement raised by the oral evidence of the Defendant’s witnesses. When confronted with two versions of the same agreement, the Court will invariably resolve the issue by recourse to contemporaneous documentary evidence. In other words, a Court of Law should be slow to uphold a claim based on an Oral Agreement unless there exists sufficient contemporaneous or other satisfactory documentary evidence to corroborate the Plaintiff’s version. The need to examine the documentary evidence to verify the Plaintiff’s claim has been rendered even more necessary, in this case by the absence of Encik Shahrul as a witness. With this as the guiding principle, I propose to examine the documentary evidence proffered by the Plaintiff in support of its claim to the existence and terms of the second oral agreement. Before I do this, I propose to deal with

 

9

 

the submission of Counsel for the Defendant that this Court should invoke Sec. 114 (g) of the Evidence Act against the Plaintiff arising from its failure to call Encik Shahrul as a witness. With respect, in my opinion, this rule need only be invoked in cases where the Court is satisfied that this witness, if called, is likely to give evidence against the Plaintiff’s case. Insofar as the emails originating from Encik Shahrul sufficiently spell out the terms of the oral agreements, on the facts of this case, I am not prepared to invoke the adverse inference rule against the Plaintiff. The fact of the matter is that Encik Shahrul has left the employ of the Plaintiff and his whereabouts not readily known to the Plaintiff. In any event, if I am minded to invoke the adverse inference rule against the Plaintiff, I should then equally apply the rule against the Defendant since the Defendant has also not called as a witness its Assistant Finance Controller, Mr. Yee, who represented its interest together with Ms. Cheong in the negotiations with the Plaintiff. In this respect, it must be borne in mind that Mr. Bernard Yee’s evidence is likely to be more independent than Ms. Cheong since, unlike her, he is no longer in the employ of the Defendant. The Defendant has not offered any satisfactory reason for not calling Mr. Yee as a witness.

 

Findings of Court

 

The only contemporaneous documentary evidence is in the form of emails in early July 2008. On 2nd July 2008, KJSB sought to purchase some of the products at cost price from the

 

10

 

Defendant. By this date, KJSB had already agreed with the Plaintiff to purchase from the Defendant at the list price. Accordingly, consistent with the first oral agreement between the Plaintiff and KJSB that KJSB would only buy the products from the Defendant at list price, KJSB undertook ‘to discuss and settle all matters with ITD’ i.e the Plaintiff, in seeking to buy at the cost price (Exh. 2 of B2). In my judgment, the contents of this email clearly corroborates the Plaintiff’s version that KJSB was allowed by the Plaintiff to bypass the Plaintiff and purchase the products from the Defendant directly but at the list price only. Why else should KJSB undertake to discuss and settle all matters with the Plaintiff ‘for this arrangement’? In other words, KJSB, with the permission of the Plaintiff, proposed to make cash transactions an exception to its earlier agreement with the Plaintiff to issue all PO for the products at the list price.

 

More relevant to both oral agreements is the response from the Defendant. Ms. Cheong in her email of the same day sought the consent of the Plaintiff ‘to the below arrangement that JOSD will invoice KJSB base on cash transaction at ITD cost’ (Exh. 1 of B2). This email was followed by another email on the following day by Ms. Cheong, this time seeking the consent of the Plaintiff to release details of its cost price to KJSB. The Plaintiff when consenting to the Defendant selling at cost price in respect of this cash transaction expressly mentioned that it was agreeable ‘only for this order. Any further order in this manner must seek our approval’ (Exh. 1 of B2).

 

11

 

Following the imposition by the Plaintiff of the need for its prior approval, Ms. Cheong did seek such approval for another cash transaction on 7th July 2008 (Exh. 3 of B2). In my opinion, the conduct of DW2 in seeking the approval of the Plaintiff before allowing purchases of the products by KJSB at cost price is inconsistent with the Defendant’s version, that after June 2008, the Plaintiff ceased to be a relevant party as KJSB bypassed the Plaintiff and commenced purchasing the products directly from the Defendant (See Q & A 13 of WSDW1). A question that readily comes to mind is, if the Defendant’s version is true, why the need to seek the consent of the Plaintiff before concluding cash transactions at cost price. More importantly, why did the Defendant conduct itself in the accordance with the demand of the Plaintiff in the Plaintiff’s email of 3rd July 2008 that ‘any further order in this manner must seek our approval’ (Exh. 1 of B2) by thereafter seeking the Plaintiff’s approval to sell the products, for the second cash transaction (Exh. 3 of B2)? The contents of the emails exchanged between the Plaintiff, KJSB and the Defendant in July 2008 and the Defendant’s conduct in July 2008 is consistent with the Plaintiff’s version of the oral agreements that, to the knowledge of the Defendant, commencing July 2008, KJSB’s purchase of the products directly from the Defendant was conditional on KJSB quoting the list price and the Defendant protecting the profit margin of the Plaintiff.

 

12

 

The only explanation forthcoming from the Defendant for its conduct is, that, it wanted to maintain a proper record of KJSB’s purchases, in case, the parent company thereafter approved the payment of the profit margin (see Q & A 26 of WSDW2). With respect, if a record of the transactions involving KJSB were being maintained for this reason only, surely, evidence of the communication to obtain the approval of the parent company by the Defendant should also be available. In my judgment, if the Defendant’s version of the second oral agreement is true, then, surely, it would have sought such approval promptly from its Head Office, following the negotiations in June / July 2008 and evidence of its communication with Hong Kong be readily available. Yet, there is no documentary evidence of either DW1 or DW2 having communicated with the parent company to obtain its approval. Although DW1 by his answers to Questions 20 and 21 of WSDW 1 purports to give the impression that approval was sought and refused, in truth, no such approval was sought. I make this finding based on the answers of DW1 under cross examination. Under cross examination by Counsel for the Plaintiff, DW1 admitted to having only discussed the matter with the Finance Director, one Mr. Colin in Hong Kong. DW1 when pressed by Counsel for documentary evidence of the formal request to Hong Kong and its response, then, conveniently claimed that he had requested Mr. Yee to undertake this assignment and he was uncertain whether Mr. Yee had followed up on his request, at all. In other words, whilst the

 

13

 

Defendant’s version is that no oral agreement was to come into existence until its parent office in Hong Kong granted approval, in fact, no formal request for approval may have been forwarded to Hong Kong, at all. With respect, discussing the matter with Mr. Colin is not the same as seeking his approval. In any event, this Court is not privy to what was discussed between Mr. Colin and DW2. What is more intriguing is, why not inform the Plaintiff that its head office had refused approval, if that was the case? In that event, the Plaintiff could have reached an alternative arrangement with KJSB so that the profit margin could have been protected by KJSB for the Plaintiff (see Q & A 17 of DWPW1).

 

The truth is, by not reverting to Hong Kong, the Defendant is seeking to appropriate the profit margin to itself. What is even more incredible, is DW2’s claim in answer to question 17 that she did not know that KJSB were quoting the list price, thereby enabling the Defendant to benefit unjustly. In this answer DW2 claimed that she only realized that the Defendant was unjustly benefiting recently, as evidenced by her statement that ‘but now, having checked, I realized that the prices are higher’. I find this answer difficult to believe since as early as 2nd July 2008, the same DW2 refused to sell the products to KJSB save at the list price. Accordingly, not surprisingly, DW2 admitted under cross examination that, contrary to her answer to question 17, she was aware of the price differential at the end of each month

 

14

 

when conducting the reconciliation exercise. Yet, she did nothing about it.

 

Accordingly, it is my finding that the Defendant’s version that there was no agreement reached during the negotiations pending approval of the parent company, is an afterthought. I am fortified in coming to this conclusion by the absence of any mention of the need to obtain the approval of the parent company in the Defendant’s denial of the letter of demand (Exh. D1) nor in its statement of defence. I am also inclined to reject the claim of DW2 that no agreement could be reached during the negotiations because she did not have the authority to conclude such an agreement. The evidence reveals that she was not alone in representing the Defendant during the negotiations. One, Mr. Bernard Yee, the Assistant Finance Controller of the Defendant was also present during the negotiations. In my judgment, the very fact that the Defendant caused DW2 to be accompanied by a superior officer during these negotiations with the Plaintiff lends credence to the Plaintiff’s claim that the Defendant’s representatives clearly had the necessary authority to conclude the oral agreement. This claim of the Plaintiff is enhanced by the fact that this same officer of the Defendant demanded during the negotiations for a 3% finance cost from the profit margin. It is not in dispute that the Plaintiff acceded to this request of the Defendant.

 

15

 

Apart from the contemporaneous documentary evidence, there is other documentary evidence supportive of the Plaintiff’s version of the second oral agreement exist. These are the two invoices of 22nd January 2009 and 23rd February 2009 (Exhs. 13 and 14 of B1) and the emails exchanged between the parties from March to June 2009. The Defendant does not dispute receiving the two invoices. The Plaintiff reminded DW2 of the January 2009 invoices being overdue vide its email of 4th July 2009 (Exh. 3 of B3). In the same email, Encik Shahrul, the Plaintiff representative in the negotiations set out the terms of the second oral agreement and sought the assistance of DW2 to finalise the profit margin. DW2 in her email of the following morning did not dispute either the existence or the terms of the second oral agreement. In this respect, it should be noted that the caption in the emails exchanged between Shahrul and DW2 was ‘margin claims for I Perintis ITD – Josd (July – August -September 08)’. DW2 merely highlighted the need to exclude from the Plaintiff’s claim invalid PO and PO forming the subject matter of cash transactions. The reference to the auditor in this email is the subject matter of a specific question and answer in the witness statement of DW2. In answer to question 24, DW2 claimed that the Plaintiff’s profit margin claim needed KJSB’s confirmation for internal audit purposes. With respect, this answer does not detract from the existence of the second oral agreement since there is no denial in DW2’s email of 5th March 2009 of either the oral agreement or its terms. The reference to the auditor is consistent with the need to obtain KJSB’s

 

16

 

confirmation of the PO issued by KJSB as the project awarder. Both DW1 and DW2 questioned the genuineness of the Plaintiff’s claim and its invoices on the grounds of delay. Their contention was, why issue the invoices in January 2009 for a claim that accrued due, at the latest in September 2009? Counsel for the Defendant also put it to PW 2 during cross examination that if the Plaintiff’s claim was genuine, then, the Plaintiff could have easily set-off the amount of the invoices against monies due from the Plaintiff to the Defendant. The thrust of the questioning being that the delay of some 6 month in the issuance of the invoices was suggestive of its issuance being an afterthought.

 

With respect, the flaw in this line of cross examination is that, at the time of the settlement by the Plaintiff of its outstanding to the Defendant in November 2008, the amount of the profit margin was still uncertain as the PO issued by KJSB had not been reconciled. Secondly, it is wrong of the Defendant to allege that the Plaintiff raised the matter of the oral agreement for the first time in March 2009. The first invoice was issued in January 2009. The reason why the Plaintiff only raised the matter by way of email in March 2009 was because the 30 day payment period only expired at the end of February 2009. Accordingly, in my opinion, there was no unusual delay in the Plaintiff raising the matter in March 2009. As regards the set off, this was never discussed during the negotiations. In any event, why should the Defendant agree to set off in July 2008

 

17

 

an amount, the quantum of which would only be known at a much later date? Counsel overlooks the fact that it was the imposition of the credit hold by the Defendant, in the first place, that caused the Plaintiff to allow purchase of the products by KJSB directly from the Defendant.

 

The first documentary evidence of the Defendant disputing the Plaintiff’s version of the oral agreements and with it, liability to pay on the invoices, is in Shahrul’s email of 23rd June 2009 (Exh. 20 of C). The Defendant relying on the contents of this email contends that its denial of liability was known to the Plaintiff from the outset. With respect, it appears to me that the Defendant must have disputed the existence of the oral agreement, for the first time, sometime in June only. I opine to this effect because this email refers to a meeting between the Plaintiff and KJSB some one week before the email of 23rd June 2009. It is my finding that consequent to the Defendant disputing liability to pay on the invoices sometime in June 2009, the Plaintiff was then compelled to meet the representative of KJSB and enlist its help to pursue its claim against the Defendant. The assistance of KJSB being essential since KJSB was a party to the first oral agreement but not the second although the terms of the second oral agreement were known to KJSB, as highlighted in this email. That KJSB fully supports the Plaintiff’s claim is evident from the presence of DW1 as its first witness in this claim. I am fortified in coming to the finding that the Defendant must have disputed liability to

 

18

 

pay for the first time in June 2009 by the absence of any response in writing from the Defendant to Shahrul’s email of 2nd April 2009 (Exh. 10 of B1), which, in turn, was in response to DW2’s requirement that the Plaintiff reconcile its account with KJSB. As contended by Counsel for the Plaintiff, why should DW1 and DW2 assist the Plaintiff and KJSB reconcile the account so as to finalise the profit margin in Exh. 21 of C, if there was no agreement to pay the profit margin from the outset. Accordingly, in my judgment, the invoices and the emails exchanged between the parties from March to June 2009 clearly corroborate the Plaintiff’s version of the two oral agreements.

 

On the particular facts of this case, apart from the documentary evidence, there is an overriding reason for this Court to reject the Defendant’s version of the oral agreement. That is this. According to DW1, the primarily reason for the Defendant not being in a position to agree to the payment of the profit margin during the negotiations, was the risk of it being construed as an act of corruption. Hence, the need to obtain the approval from Hong Kong. Assuming for a moment that this was a legitimate concern, surely this concern was known to the Defendant at the time of the negotiations (see Q & A 14 & 18 of WSDW1). That being the case, why not reject the Plaintiff’s request for payment of the profit margin, at the very outset. Alternatively, since the negotiations commenced sometime in June and continued into July, surely there was sufficient time

 

19

 

for DW2 to verify the legitimacy of their concern with Hong Kong? Instead, what the Defendant did, was to ensure the presence during the negotiations of senior management in the form of Mr. Yee, a person with authority to conclude the agreement. Otherwise, why require Mr. Yee to participate in the negotiations, if there was no prospect of agreement being reached because payment could be construed as an act of corruption? The inconsistency in the conduct of the Defendant does not end here. DW2 also claims to have spoken to Mr. Colin in Hong Kong and requiring Mr. Yee to write to Hong Kong to obtain approval. If there was no agreement at all, as alleged by DW1 (see Q & A 17 of WSDW1), then, why call or write to Hong Kong? In my judgment, the evidence of DW1 and DW2 that any oral agreement was subject to the approval of the parent company in Hong Kong, is an afterthought. I opine to this effect because there was no mention of the Defendant imposing this condition about approval from Hong Kong in any of the emails originating from DW2 in response to Shahrul’s email setting out the terms of the oral agreement. Neither was there any mention of this condition in response to the Plaintiff’s solicitors letter of demand (Exh. D1). In the ultimate analysis by denying the oral agreement, the Defendant stands to appropriate the profit margin to itself and thereby unjustly benefit itself when a timely rejection of the Plaintiff’s request that it protect the profit margin would have enabled the Plaintiff to conclude an alternative arrangement with KJSB. Accordingly, in my judgment, the Defendant’s version of the oral agreement

 

20

 

is inconsistent with all available documentary evidence, probably concocted in the course of the preparation of the witness statement and of a self-serving nature.

 

Since the quantum of the Plaintiff’s claim for the profit margin is a reconciled figure and which amount was neither challenged nor disputed by Defendant’s Counsel, I order judgment for the Plaintiff in the sum of RM 540,609.86. This amount representing the aggregate of the profit margin for the months of July, August and September 2008. I order the Defendant to pay interest on the judgment sum at 8% p.a. from 25th March 2009 till payment. The interest to commence from 25th March 2009 since the 30 day payment period for the second invoice expired prior that date. I also order the Defendant to pay costs of RM 30,000 to the Plaintiff.

 

Sgd.

 

(Y.A Tuan K. Anantham)

 

Pesuruhjaya Kehakiman Mahkamah Tinggi Kuala Lumpur

 

Date of Decision: 25th June 2010

 

Counsels:

 

Mr. R. Harikannan

 

(Tetuan Jayadeep Hari & Jamil) … for the Plaintiff

 

Mr. Jeffery Wong

 

(Tetuan Jeffery Wong Noorul Ho & Lim) … for the Defendant

 

21

PDF Source: http://kl.kehakiman.gov.my