IMEJ PARKING SDN BHD v KOPERASI PERMODALAN FELDA MALAYSIA BERHAD

Case Significance

The operator's companion cross-appeal on parking rental and the Factories and Machineries Act 1967 certification duty, confirming the operator's primary certification role and the owner's secondary liability under section 50(3), with appellate restraint absent error.

This Court of Appeal decision is the companion cross-appeal, heard together with the building owner's appeal, in a dispute over parking rental and the statutory duty to certify parking machinery under the Factories and Machineries Act 1967. This appeal was brought by the company that operated the parking space against the trial court's decision. Both the operator and the cooperative building owner are corporate or cooperative entities and are named. The claims in the underlying suit included a claim for the excess payment of parking rental, which turned on whether the correct method of calculating the rental had been applied, and a claim for loss of profit said to arise from parking bays operated without the necessary licence.

The recurring legal question, common to both cross-appeals, was the allocation of the duty to obtain and maintain a certificate of fitness for the parking equipment as between the building owner and the operating company. Construing sections 3, 19, 21, 40(3) and 50 of the Factories and Machineries Act 1967 together with Regulation 10 of the Factories and Machinery (Notification, Certificate of Fitness and Inspection) Regulations 1970, the court reasoned that the operator — being in day-to-day control of the equipment — is the party positioned to furnish the information required when an inspection is carried out, while the owner retains only a secondary liability under section 50(3), engaged only if it knowingly permits operation without proper certification.

The court observed that no enforcement issue against any party had arisen at the trial, so the question of secondary liability did not fall for decision, and that its findings on the certification duty did not change the outcome of the appeal to the advantage of the operator's pleaded claim. It found no basis to reverse the trial judge's findings and held that no appellate intervention was warranted. The judgment is a useful illustration, from the operator's perspective, of how the certificate-of-fitness obligation under the Factories and Machineries Act 1967 is distributed between owner and operator, and of the appellate court's reluctance to disturb trial findings that reveal no error and would not alter the result.