ARKAN ROMA TRAD EST v 1. ) RIPAC SDN BHD 2. ) MOHD QHOLIF BIN SHAH IZRON DADAMEAH 3. ) BURHAN @ OSMIZAR BIN ABDUL RAHMAN 4. ) HISHAM SABBAGH A. FATTAH

Case Significance

Illustrates how a court fixes the quantum of a refundable deposit on the documentary record where a buyer alleging defective goods failed to return them when able to do so.

This High Court decision at Shah Alam is a clarification of an earlier judgment, given after trial, in a cross-border sale-of-goods dispute, delivered in the context of a partial appeal by the plaintiff. The plaintiff, a foreign trading establishment, had bought vehicle spare parts from Malaysia for delivery to Saudi Arabia under an arrangement evidenced only by a proforma invoice and a payment statement, and alleged that the parts supplied were defective and that the first defendant had refused to replace them with new parts. In the earlier decision the Court had ordered the defendants, jointly and severally, to refund thirty per cent of the total purchase price — a deposit of 651,000 Saudi Riyals out of a price of 2,170,000 Saudi Riyals — together with a late-payment penalty calculated at 300 Saudi Riyals per day over a defined period, amounting to 33,000 Saudi Riyals. The Court reasoned that, although the plaintiff had complained of defects, it had been given the opportunity to return the defective parts to the first defendant and had failed to do so, which is why the appropriate relief was the return of the thirty per cent deposit rather than the full damages claimed. In this clarifying judgment the Court addressed the correct computation of that thirty per cent deposit. It rejected the plaintiff’s assertion that the deposit was a higher figure, holding that the plaintiff’s counsel’s reliance on an admission by the fourth defendant did not conclusively prove the plaintiff’s calculation, and that, on the balance of probabilities and on the documentary evidence, including the plaintiff’s own bank payment slips, the deposit figure was as the defendants had stated. The Court noted that no document had been produced by the plaintiff to establish the higher deposit figure it asserted, so the calculation advanced by the defendants was to be preferred. Per Rozi binti Bainon JC, the judgment illustrates how a court fixes the quantum of a refundable deposit on the documentary record in a defective-goods dispute.