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Malayan Law Journal Unreported/2011/Volume /CHAI LANG FAH @ CHAI LIAN FAH v CYCLE &
CARRIAGE BINTANG BERHAD (NO.SYARIKAT: 7378-D) - [2011] MLJU 0380 - 1 April 2011
[2011] MLJU 0380

CHAI LANG FAH @ CHAI LIAN FAH v CYCLE & CARRIAGE BINTANG BERHAD
(NO.SYARIKAT: 7378-D)
HIGH COURT (JOHOR BAHRU)
GUNALAN A/L MUNIANDY, J C
CIVIL SUIT NO MT(1)22-378-2008
1 April 2011
Thamil Chelevan (Messrs C S Tarn & Co),
David Lingam (Messrs David Lingam & Co)
GUNALAN A/L MUNIANDY, J C
JUDGMENT
[1] Plaintiff (P)'s cause of action is negligent and/or fraudulent misrepresentation by Defendant ('D') and/or
their agent that induced her to enter into a sale and purchase agreement for motor-car bearing registration
number "JKM1" ('the said car'). The alleged misrepresentation was that the said car was manufactured in
year 2007 when in fact the year of manufacture was 2006 and that it was a new car and free of defects. The
remedy sought was rescission of the contract or alternatively, damages for breach of contract.
Plaintiff PVs Pleaded Case
[2] On or around 28.07.2007, P agreed to purchase from D the above motor-car, a Mercedez Benz 350 SE
at the price of RM734.787.00. A booking fee of RM30.000.00 was paid on 30.07.2007 followed by the
balance of RM704.787.00 on 01.10.2007. In order to induce P to purchase the vehicle, D's agent (DW1)
allegedly told P and/or her husband that it was a new car manufactured in year 2007 and was free from
defects. The representations were said to have been made verbally and by letter dated 30.07.2007. Based
on these, P was allegedly induced to purchase the vehicle and pay its full price. Subsequently, P discovered
the representation to be false upon having sight of the log book received from D after registration in her
name. It showed the date of manufacture to be 2006 and not 2007. Thereafter, after taking delivery and
running the vehicle, P also noticed various defects in it which could not be rectified even though it was sent
several times to D's workshop. P, through her solicitors wrote to D on 02.01.2008, proposing an amicable
settlement of the dispute either by replacement of the vehicle or by other means. D replied that both parties
had amicably settled the matter by replacement of all 4 tyres. However, this too didn't work as there was
leakage of water into the vehicle. On 09.05.2008, P's solicitors wrote to D to rescind the contract on the
ground of total failure of consideration. By this suit, P pleads rescission and prays for return of all the sums
paid as pleaded.
Defence Case
[3] Before purchase was effected, one Siaw Swee Mie [ PW2], daughter of P, signed an offer to purchase
form (OTP) for the vehicle referred to as a 2007 model at a price of over RM750.000.00. D informed DW1
that there was a long waiting list for the 2007 model whereupon P agreed to purchase a 2006 model instead.
As such, D offered a discount of RM40,000.00 on the purchase price. On 27.08.2007, PW1 applied to D to
have the booking transferred to her mother. D carried out the transfer and the OTP was duly amended. Upon
full payment of the discounted purchase price, the vehicle was duly registered in P's name by the Road
Transport Department (JPJ) on 08.10.2007.

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[4] D claimed to have only represented to P that the vehicle was new, not used and manufactured in year
2006. Any kind of false representation or statement meant to induce D to purchase the vehicle was denied. P
knew as early as July 2007 that the year of manufacture was 2006, If P had come to know of this only on
08.10.2007, why did P not object and complain forthwith instead of bringing up the issue only in January
2008, which appeared to be an afterthought? P herself carried out inspection of the vehicle before taking
delivery. The vehicle came with a 2 year defect liability warranty given by the manufacturer. During this 2
year period P made numerous complaints regarding various parts of the vehicle which were all attended to
by D who then carried out inspection and repairs according to manufacturer and standards. The set of tyres
was replaced on P's request without admission of liability under the terms of the warranty. Serious defects in
the vehicle and therefore, total failure of consideration were denied.
Issues To Be Tried
[5]
)1
)2
)3

Whether there was fraudulent/negligent misrepresentation by D's agent to P and/or her

husband that the vehicle was a year 2007 make and free of defects?
Whether the vehicle was defective at the time of delivery and thus, D in breach of the implied
term of the agreement that the vehicle was of merchantable quality and fit for use?
Whether P was entitled to rescind the contract for total failure of consideration and recover the
entire purchase price?

Analysis of Evidence and Issues Conflict Between Evidence and Pleadings

[6] This is the fundamental point raised by the defence against the evidence adduced by P on the alleged
misrepresentation as pleaded. It was contended by defence counsel (D/C) that parties are strictly bound by
their pleadings when producing evidence at the trial and are confined to the four walls of their pleadings. This
is indeed a correct statement of the law based on recognized and time-honoured principles.
[7] In the context of the present case, the averment that forms the foundation of this claim is that P was
induced into entering into the agreement by reason of a verbal statement made to her or her husband by D's
agent (DW1) on 28.07.2007 and in reliance on a letter dated 30.07.2007. D/C contended that through
evidence elicited from P (PW1) in cross-examination, the said averment was proven to be wholly false and
baseless. At the first instance, PW1 maintained that she filed this suit against D on the basis of a fraudulent
statement made to her verbally on 28.07.2007 by D's agent with regard to the car. As regards the letter'dated
30.07.2007, she denied ever having read it which was contrary to what was pleaded in the statement of
claim ('SOC'). Despite alleging misrepresentation against D, PW1 conceded that she had never met anyone
from D's company nor was she involved in any way in the purchase of the car, meaning that no statements
had in fact been made to her on 28.07.2007. Neither had she paid any part of the purchase price of the car.
Similarly, the averment in the SOC that she discovered several defects in the car was contrary to her
admission under cross-examination that she knew nothing about the condition of the car.
[8] P is the registered owner of the car and the mother-in-law of the person (PW3) who fully handled the
negotiations with D's agent for purchase of the car and eventually, the purchase itself. Since then, the car
was at all material times under his care and control. The original booking of the car was under the name of
his wife (PW2) who then applied to D to transfer the booking to PW1 on 27.08.2007 [ See Transfer of
Deposit Form - pg. 4, DBOD ]. The OTP was accordingly amended by DW1 to reflect PW1's name as the
customer. In her evidence, PW1 said that all transactions pertaining to the car were handled entirely by PW3.
She herself had absolutely no knowledge of the circumstances surrounding the sale or the condition of the
vehicle at the time of delivery and thereafter.
[9] To reiterate what has been discussed, the basic premise of this claim is that DW1 was induced into
purchasing the vehicle by the alleged misrepresentation. How could she have been so induced if, admittedly,
she did not participate in any way in the transaction even if it can be accepted that "and/or her husband" in
the SOC meant PW3 as the husband of the original purchaser. On the evidence, the alleged untrue

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statement by DW1 was never communicated to her and as such, she could not have been influenced by that
statement in making the purchase. P could not now depart from their own pleadings and allege that it was
PW3 who was so induced. PW3 is neither a party to this suit nor the contract. Any misstatement made to him
has no bearing on misrepresentation pertaining to the contract as he did not enter into any contract with D.
Misrepresentation to found a claim under the :law of contract must possess the key element of having
induced the plaintiff to enter into the contract under a mistaken impression or belief brought about by the
purported misrepresentation. This suit is brought under the name of PW1 only as the registered owner of the
vehicle but she did not participate, whether directly or indirectly, in the transaction with D at any point leading
up to the purchase of the vehicle. Hence, the averments in the statement of claim that she as the Plaintiff
dealt directly with D and in the process was induced into signing the contract were patently untrue arising
from her own evidence. As rightly pointed out by D/C, all the allegations and averments in the SOC are from
the perspective of a third party, i.e., PW3, insofar as the contract is concerned. PW1 herself had no personal
knowledge of the issues raised in the SOC and had absolutely no evidence to support the allegations made
against D. Neither was the deposit of RM30.000.00 paid by her.
[10] PW2, P's daughter who transferred the booking to her, too also denied any involvement whatsoever in
the dealings relating to purchase of the car which were all conducted by PW3, her husband. The signatures
in the OTP and TD forms above her name did not belong to her but the correct address was stated This
admission lent credence to DW3's evidence that these documents had been actually signed by PW3 on
behalf of PW2. Nothing turned on the fact that DW1 had not seen PW3 affixing his signature on the transfer
form as she (PW2) herself had admitted not having signed it. The fact remained that she had not participated
in the entire sale and purchase transaction with D or their agents and had no knowledge of the essential
documents adverted to despite being the purchaser on paper. Insofar as the impugned representations by
DW1 are concerned, she was obviously not the representee.
[11] PW2 confirmed that PW1 became the registered owner after the transfer of booking initiated by PW1
was carried out followed by the registration process without any involvement by PW1 with D, particularly at
the booking stage. She had, thus, no dealings whatsoever with D at the point in time when the contract was
entered into. Hence, the averments in the SOC which purport that the plaintiff (PW1) had direct dealings with
D before the contract was executed are manifestly untrue.
[12] PW3 confirmed that while not being the plaintiff in this case, he was the person who had at all material
times before and after the purchase dealt with D and had paid the full amount towards the purchase price of
the car. He did not deny the non-participation of either PW1 or PW2 in the dealings with D. He conceded
that, being the aggrieved party facing losses from the alleged misrepresentation, there was nothing
preventing him from being a party to the suit such as bankruptcy on incapacitation.
[13] It is well settled that parties are bound by their pleadings and the particulars contained therein and
unless amendments are allowed, the evidence led must be consistent with and confined to issues raised in
the pleadings [ Anialai Ammal & Anor v Abdul Kareem [1962] 1 MLJ 22]. In this case, the evidence from the
Plaintiffs principal witnesses themselves was manifestly in conflict with the averments in the SOC relating to
misrepresentation which were, thus, rendered false. Based on this score alone, the claim in its present form
was unsustainable and had to fail.
[14] Plaintiff's counsel (P/C) submitted that PW3 not being a party to this suit was a non-issue and not
among the agreed issues set down for trial. Further, that he need not be a party as he was acting as agent
for P and merely party conducting the affairs with regard to purchase of the vehicle conducting for her. He
had purchased the car for his wife (PW2) who had subsequently transferred it to PW3. It was submitted that
P as owner and the contracting party had the locus standi to bring this suit and entitled to judicial relief. In
support thereof the case of Cheng Hang Guan & Ors v. Perumahan Farlim (Penang) Sdn Bhd. & Ors. [1993]
3 MLJ 352 was cited where Edgar Joseph, Jr. J. (as he then was) held that:
"The term locus standi or standing in a court of law means entitlement to judicial relief apart from questions of the
substantive merits and the legal capacity of a plaintiff. There are two principles to bear in mind: first, the court is bound
to proceed on the basis that everything alleged in the statement of claim and in the documents relied on is true; and
secondly, the jurisdiction to uphold a plea of no locus standi should only be exercised where there is no possibility of

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doubt. The objection to non-joinder was only taken at a very late stage in the submissions of the defendants' counsel
and O 15 r 6(1) of the RHC states that no action shall be defeated by reason of non-joinder of any party.".

[15] The above submission was, in my view, misconceived and off the mark as the crux of the defence
contention was not a challenge to P's right to sue or locus standi but that P, contrary to the averments in the
SOC, was not conversant at all with the material facts relied on to establish her claim. Based on the
pleadings as they stood, PW3 could not step into her shoes as PW1 (P) herself was held out to be the
misrepresentee and thereby, induced into signing the contract which was shown to be wholly untrue from P's
own evidence. If there was anyone so induced, it could only be PW3 but this was manifestly in consistent
with the tenor of the averments.
[16] On the point of pleadings, the established principles are explained in the recent Court of Appeal decision
of Raniit Kaur S. Gopal Singh v. Hotel Excelsior (MVSdn. Bhd [2010] 3 CLJ 310 where Low Hop Bing, JCA
said:
"... Of course, of utmost importance is the principle that the parties are bound by their pleadings. What this means is
this. That the court is not entitled to decide a suit on a matter which is not pleaded and that the trial of the suit is solely
confined to the pleadings (Yew Wan Leong v. Lai Kok Chve [1990] 1 CLJ 1113; [1990] 1 CLJ ( Rep) 330)...
In regard to the objects of oleadings, Buhagiar J, in Wong See Leng v. C. Saraswathv Ammal [1954] 1 LNS 133 had
this to say:
Now as stated in Bullen and Leake's Precedents, of Pleadings, 10th Edition page 1: The principal objects of pleadings
are firstly, to define the issues of fact and questions of law to be decided between the parties; secondly, to give to each
of them distinct notice of the case intended to be set up by the other and thus to prevent either party from being taken
by surprise at the trial; and thirdly, to provide a brief summary of the case of each party, which is readily available for
reference, and from which the nature of the claim and defence may be easily apprehended, and constitute a permanent
record of the question raised in the action, and of issues decided therein, so as to prevent future litigation upon matters
already adjudicated upon between the litigants.
In the absence of pleadings, evidence if any produced by the parties cannot be considered by the court and no party
should be permitted to travel beyond its pleadings. All the necessary and material facts should be pleaded by the party
8 in support of the case set up by the said party (Ram Sarup Gupta (dead) by L Rs. v. Bishun Narain Inter College and
others. AIR [1987] SC 1242; and K. Kanakarathnam v. A, Perumal and another, AIR [1994] Mad. 247). According to the
case of Hari Chand v. Daulat Ram. AIR [1987] SC 94, no evidence can be led on a fact not pleaded. Neither is it open
to the parties to give up its case set out in the pleadings and propound an entirely new and different case (Vinod Kumar
Arora v. Smt. Suriit Kaur. AIR [1987] SC 2179 at 2183).".

[17] The position in law on persons entitled to claim relief for misrepresentation is clearly set out in Chitty on
Contracts, Vol. 1 at p. 354 para 6-032 as follows:
"The representee. In order to be entitled to relief in respect of misrepresentation, the person seeking relief must be able
to demonstrate that he is a representee; There may be said to be three types of representees: first, persons to whom
the representation is directly made and their principals; secondly, persons to whom the representor intended or
expected the representation to be passed on; and thirdly, members of a class at which the representation was
directed.".

[18] In the instant case, P was plainly not a party who was entitled to claim relief for misrepresentation. All
that needs to be said, is that she did not fall within the persons classified as being entitled to remedy for
misrepresentation. The alleged misrepresentation would fall within the definition in s. 18 , Contracts Act.
Even if it could be assumed that DW1 had made a positive assertion that was false to PW3, who was acting
as an agent of PW1 or PW2, there was no proof that either of them had acted on the said false statement
which induced PW2 into signing the purchase order. A false or untrue statement by itself is insufficient
without the accompanying element of inducement, which is the essence of misrepresentation, for it to be
actionable.
Fraudulent/Negligent Misrepresentation By Defendant

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[19] This allegation was vehemently denied by D who put P to strict proof thereof. There could be no dispute
that the burden of proving fraud rests with P but the standard of proof varies depending on whether the fraud
alleged is criminal in nature. Whatever the standard of proof applicable, it is well settled that the onus of
proving fraud would be on the party alleging it, which is P in this case. On the point of standard of proof
where fraud is alleged, it would be useful to refer to the decision of Lau Hee Teah v HargilL Engineering Sdn.
Bhd. & Anor [1980] 1 MLJ where it was held:
"On the question of the burden of proof when fraud is alleged, the standard required in civil cases is proof on the
balance of probabilities but the degree or probability which must be established will vary from case to case according to
the gravity of the allegation to be proved. A civil court when considering a charge of fraud will naturally require for itself
a higher degree of probability then that which it would require when asking if negligence is established.".

[20] The first limb of the alleged misrepresentation was a statement made by D through their agent (DW1)
that the car to be purchased was a brand new vehicle manufactured in year 2007. As it was common ground
between the parties, as reflected in their evidence, that all the dealings between the parties leading up to the
contract being entered into were conducted wholly by PW3 and DW1, this issue has to be determined by first
examining their differing versions to determine which was likely to be the truth.
[21] The material parts of PW3"s evidence are these. He, together with 2 friends (PW4 and PW5) went
together to purchase Mercedez car from D. D sold to them (PW4 and PW5) a year 2008 300 model at a
discount of RM50,000.00. Initially, DW1 suggested that PW3 purchase a 'show room car', pre-registered in
the name of D but new PW3 did not agree with the suggestion as he wished to purchase a new car. Upon
purchasing the vehicle he desired bought a comprehensive motor insurance policy for the period 08.10.2007
- 07.10.2008. [ See 5-17 CABD B ]. He discovered that the car bearing registration number JKM 1 was
manufactured in year 2006 only when the log book was handed over to him on 8.10.2007. The question to
be answered was precisely this, whether he discovered the date of manufacture only on 8.10.2007 and not
before the purchase? Having so discovered he did not do anything since then until December 2007 when his
solicitors sent a letter to D (pages 35 & 36, CABD B). He explained the delay to be that he had already he
complained to DW1 who agreed to replace the car but failed to do so even after 2 months.
[22] PW3 said that he felt cheated because he has chosen to purchase a new car but received an old car
manufactured a year before. It felt like an old car too and the resale value would be much lower compared to
a year 2007 car.
[23] According to DW1, it was PW3, as P's representative, who initially wished to purchase a demo unit of
the Mercedez S 350 LSE (2007 model) for which D offered a discount of RM50,000.00. In support he
produced the order to purchase (OTP) form on which the word 'demo' was written and then cancelled under
the "Model...." column. P did not purchase the demo unit as they had to wait for it. PW3 was also told that
there was a long waiting list for delivery of a 2007 model. As such, on DWI's suggestion, PW3 agreed to
accept a new 2006 model - the subject-matter of this suit, for which D offered a RM40,000.00 discount,
which is reflected in the invoice. PW3 did not deny the discount but disputed the reason for it as given by
DW1. The reason given by DW3 will be dealt with subsequently. According to DW1, the discount was not a
small figure but substantial as reflected in the difference between the on the road (OTR) price and that
eventually paid by P. A deposit of RM30.000.00 was then paid, according to the OTP form, by PW2 vide a
UOB cheque.
[24] DW1 also referred to the change of name of the customer (PW2) in the OTP form to the name of PW1
(Plaintiff) about a month later. This was effected through the Transfer of Deposit Form (TDF) dated
27.08.2007. about a month after the OTP was signed. The TDF was for transfer of the booking together with
a deposit. It states the model and date of the vehicle to be "Mercedez-Benz S 350 L. SE 2006" and was
signed by both PW2 and DW1. This should rightly mean that PW3, who had personally handed all the
transactions and documentation would have known at the latest by 27.08.2007 that the year of make of the
vehicle was 2006. PW2 had denied ever having had sight of either the OTP or the TDF.
[25] As rightly pointed out by D/C, the fundamental documents bearing upon the issues in this case are the

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OTP, the TDF and the insurance policy. P's uncontroverted evidence through all 3 witnesses was that the
entire transaction with D was conducted by DW3 alone. Hence, he must rightly have been fully aware of and
privy to all these basic documents. It would be incredible for him not to even have seen them. According to
DW1, both OTP and TDF were actually signed by PW3 and not PW2. As regards the OTP, it was said to
have been signed by PW3 in front of him whereas the TDF was sent to PW3's office and collected later in the
day with the signature having been affixed. He presumed that PW3 must have signed it as he had sent the
TDF to PW3's office on the latter's instructions. It was not unreasonable to presume so as PW2 denied even
having seen this document. However, when PW3 was asked whether he had seen these documents, he
denied having seen them. This was indeed not credible as the OTP was the most crucial document that set
the process of sale in motion. Similarly, he alone had handled the transfer of ownership to PW1 and it was
unbelievable that he had not seen the TDF. As pointed out by D/C, PW3's stance was under the
circumstances, evasive and not supported by the weight of evidence. This was, perhaps, due to the fact that
the TDF states clearly that the vehicle purchased was manufactured in 2006. The parties must, thus, have
known at that point in time itself i.e. 27.08.2007, of this fact and could not have been misled. Similarly, the
Certificate Of Insurance issued on 17.11.2007 states in the Policy Schedule that the year of manufacture
was 2006. Even if PW3 had overlooked the other 2 documents, it was unlikely that he could have also failed
to notice the particulars in the policy.
[26] A central aspect qf the defence case was that a discount of RM40,000.00 was approved for the
purchase as P, through PW3, had chosen to purchase a new 2006 model as the waiting list for the 2007
model was too long. P did not dispute that the model purchased was new but PW3 denied that the discount
of RM40,000.00 was due to the vehicle being a 2006 make. Instead, he alleged that the discount was by
reason of him having made the purchase with two of his business friends (PW4 and PW5) who had
simultaneously purchased Mercedez vehicles from D. However, when PW4 and PW5 took the stand, this
evidence of PW3 appeared to be false as both of them said unequivocally that they had received a discount
of RM50,000.00 from D as they had opted to accept a demonstration car ('demo' unit). This also lent
credence to DW1's testimony that PW3 too had been offered a RM50,000.00 discount for a 'demo; unit.
PW3's assertion as to the reason for the discount was proven by P's own witnesses to be entirely misleading
and false. All considered, despite the amendments made by DW1 in the OTP form reflecting the order for a
2006 model not being endorsed by both parties, the allegation that DW1 had made a false representation as
to the year of manufacture was in conflict with the available documentary evidence referred to and unproven.
The conflict could not be resolved by reliance on the evidence of PW3, which was evasive, self-serving and
untruthful on several material aspects. The fact that the issue of year of manufacture was first raised only in
January 2008, well after issuance of the said documents, supported the allegation that it was an afterthought
and not a result of any misrepresentation. [ See P's solicitor's letter dated 02.01.2008 - p. 38, CABD B ].
Whether The Car Was Defective
[27] DW1 was alleged to have represented to P and/or PW3 that the car was free from defects. P's solicitors'
letters dated 06.12.2007 and 02.07.2008 alleged that it was an old defective car. However, at the trial, the
allegation of the car being old was not pursued and it was conceded that the vehicle was brand new. DW1
denied making a representation that the car was defect-free as he had merely offered to sell a new car that
was manufactured the previous year. In all probability, DW1 could not have made a statement of this kind as
the car came with a 2 year warranty or defect liability period within which all defects covered by the warranty
had to be attended to or rectified. It was unlikely for DW1, as just a sales agent of D, to have given an
assurance of this kind as it involved technical and mechanical aspects of a highly priced, premium model P,
having no other evidence save that of PW3, failed to prove otherwise.
[28] Granted that the vehicle had to undergo several repairs, adjustments and parts replacement within a
couple of months after the delivery. Did these amount to the vehicle being defective at the time of delivery?
Among the note worthy fact was that there was fairly heavy usage of the vehicle right from the start. The
term "defective" in relation to sophisticated machinery, like motor vehicles, is technical in nature, meaning
that it can't be determined by merely considering the point of view of the lay user such as PW3 in this case,
based on the problems encountered by him in the running of the vehicle 'right from the word go' according to
P/C's submission. The repairs and replacements that had to be done during the period of over 3 years since
purchase are to be found in the relevant service documents [See pages 12-52, Bundle I ], a summary of

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which is listed down in P/C's submission [ See pg 8 ]. The documents are self-explanatory and need no
repetition. In submitting that the records spoke for themselves, P/C posed the question whether with the
defects that had to be rectified the car could still be considered new. In his argument, it could be concluded
that the car was certainly not worth the price tag of RM734, 787.00 and more importantly, that it was not
what a buyer would expect of a new car of this class.
[29] P/C did not point to any evidence elicited from any witness showing the particulars of when and how D
had misrepresented that the car was free of defects. Instead, he referred to the advertisement [ pg 1, Bundle
I ] announcing that the car had won the "2006 car of the year award for Premium Executive Car" as the
impugned representation. Apart from this not being in accordance with the pleadings, in which this fact was
not pleaded, it was not shown how a general advert not specifically addressed to P could from the basis of a
misrepresentation claim.
[30] In respect of a contract for the sale of a specific article, like a motor vehicle, the law governing issues of
quality or fitness for the specific purpose would be s. 16 , Sale of Goods Act, 1957. The relevant subsection
provides as follows:
"S. 16 Implied condition as to quality or fitness
(1) Subject to this Act and of any other law for the time being in force, there is no implied warrant or condition as to the
quality or fitness for any particular purpose of goods supplied under a contract of sale, except as follows (a)...........
(b) Where goods are bought by description from a seller who deals in goods of that description (whether he is the
manufacturer or producer or not) there is an implied condition that the goods shall be of merchantable quality: Provided
that if the buyer has examined the goods, there shall be no implied condition as regards defects which such
examination ought to have revealed.".

[31] In the context of the instant case, the question of defectiveness should be determined from the
perspective of whether the vehicle was of merchantable quality and fit for use as intended under normal
circumstances. D produced as their witness the Assistant Sales Manager of D at the JB branch. He had a
Diploma in Automobile Engineering and 15 years' experience in the auto industry. Granted that he was a
partisan witness and not called as an expert in the field. Nevertheless, due to his experience and
qualifications, whatever weight deemed fit had to be given to his evidence in the light of there being no
independent technical evidence from P on whom the onus of proof rested. The essential parts of his
testimony are these. The first warranty service performed on the vehicle was on 24.10.2007 - about 2
months after purchase -when the mileage was 1892 km. At the second service on 30.01.2008, the
accumulated mileage over a three month period was 11,340 km at which point in time the vehicle was
trouble-free. Subsequent major/maintenance services were carried out regularly. The average usage came
td about 10,000 km during each 3 month period. As at 06.01.2011 when the last service invoice was issued
by D, the vehicle had clocked in more than 97,000 km. after usage for a little less than 314 years.
Throughout the period, all scheduled and warranty services including replacement of parts complained of,
had been carried out to PW3's satisfaction. In DW2's opinion, there was nothing unusual for a car of this
model, based on the level of periodic usage, and the heavy accumulated mileage, to encounter the problems
that had been attended to.
[32] The question was whether under the above circumstances, in particular the accumulated usage and the
services rendered during the 2 year warranty period as well as rectification of defects, the car could still be
considered to have been defective at the time of delivery. This question had to be answered in the sense of it
being totally unfit for use as a private vehicle. My attention was drawn to an excerpt from a case most
relevant to the current issue, Seng Hin v. Arathoon Sons Ltd. [1968] 2 MLJ 123 which states:
"In order to show that the goods were not of a merchantable quality it had to be shown that the goods were of no use
for any purpose for which such goods would normally be used and were therefore not saleable under that description.".

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[33] In my finding, there was no evidence on record pointing to the vehicle being of no use at all for the
purpose for which it was meant to be used. Applying the test propounded in the above case to the facts of
the present case, it would be unreasonable and farfetched to say so. P had used the car for more than 3
years clocking up accumulated usage in excess of 95,000 km. The series of problems encountered, albeit
major in some instances as apparent in the service invoices, were not unsusceptible to repairs and
rectification, which were duly carried out by D in accordance with their warranty obligations. At no instance
did P or PW3 return the vehicle to D on being dissatisfied with the service rendered. The quality of the
repairs was not in question. In Lau Hee Teah (supra), the Federal Court, in connection with the issue of what
constitutes a new car, agreed with and adopted the test propounded by the Court of Appeal in England in
Reg v. Ford Motor Co. Ltd [1974] 1 WLR 1220 1227-1228:
"But the heart of this case really turns on the fifth criterion, the suggestion that a car ceases to be new as soon as it
sustains any significant damage and irrespective of the quality of the repairs. That is a test which we do not find it
possible to accept. It seems to us that in this respect the questions to be asked when a car has sustained damage
which has thereafter been repaired, both events having occurred away from the manufacturer's premises, are: First,
what is the extent and nature of the damage? And, second, what is the quality of the repairs which have been effected?
If the damage which a new car after leaving the factory has sustained is, although perhaps extensive, either superficial
in character or limited to certain defined parts of the vehicle which can be simply replaced by new parts, then provided
that such damage is in practical terms perfectly repaired so that is can in truth be said after repairs have been effected
that the car is as good as new, in our judgment it would not be a false trade description to describe such a car as new.".

[34] Even though the above test concerns the question of when a car ceases to be new, the test could very
well be applied to the present dispute as to whether the car could be regarded as defective. As in that case,
there was a similar situation here where the vehicle was no longer under the care or control of D throughout
the period when the problems surfaced and were readily rectified by D.
[35] In the premises, as P had failed to adduce any expert or technical evidence to prove that the car was
defective in any form or manner and unroadworthy for use, P had failed to discharge the burden placed on
her to prove the said allegation. An expert report based on inspection by an independent auto body or
agency recognized by the Road Transport Department ('RTD') could be easily procured to establish whether
the car was actually defective and if so, to what extent and whether it could be rectified for safe use. Having
not produced the required evidence and by merely relying on the oral evidence of PW3, P failed to prove that
the car was defective in the sense of not being of merchantable quality and being totally unfit for use. Hence,
the question of false representation by D's agent and total failure of consideration did not arise.
Decision
[36] In accordance with established principles, this suit has to be decided strictly on the pleadings which
meant that only matters and issues raised in the SOC could be considered to decide whether the claim had
been proved. The cause of action is fraudulent and/or negligent misrepresentation practised by D on the
Plaintiff to induce her into signing the contract.
[37] The impugned representations allegedly made by D's agent/representative (DW1) were: 1) that the car
was manufactured in 2007; and 2) that it was free of defects. Based on my analysis and findings, P had
failed to discharge the onus of proving that DW1 had misrepresented to Plaintiff and/or her husband in either
of these two forms or both and that, thereby she had been induced into being a party to the contract. The
vital elements of misrepresentation had, thus, not been proved to entitle P to rescind the contract or claim
damages in lieu thereof. The conflict between P's evidence, particularly the role played by PW3 and the
non-involvement of P herself, and the averments in the SOC led to the claim being without any foundation.
[38] Assuming that D had made the representation about "free of defects", P failed to prove that the vehicle
was defective within the meaning of s. 16 of the Sale of Goods Act, 1950 which was the relevant law
applicable to this issue. The evidence, in its totality, did not disclose that the car was defective to the extent
that total failure of consideration occurred. The claim for breach of contract on this ground, therefore, also
fails.
[39] In view of these findings, I will not delve into the remedies available for breach of contract on the ground

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of misrepresentation or total failure of consideration. In conclusion, I dismissed the entire claim with costs.