KILANG SAWIT LEMBING SDN BHD v WASCO THERMAL SDN. BHD. (dahulunya dikenali sebagai MACKENZIE INDUSTRIES SDN BHD)
Catchwords
Contract — Sale of goods — Industrial boiler — Implied conditions — Fitness for purpose and merchantable quality — s. 16 Sale of Goods Act 1957 — Tube failure of boiler — Breach established Contract — Express warranty — Integrity of components and workmanship — Latent defects — Pre-commissioning defects — Acceptance upon commercial operation not a waiver of liability Liability — Pre-commissioning phase — Failure to implement corrosion protection measures — Oxygen ingress and pitting — Extended commissioning period — Defendant solely responsible — Tube failure — Pitting initiated prior to commissioning — Latent defect crystallizing during operation — Not attributable to plaintiff’s post-handover use Evidence — Expert evidence — Preferential weight accorded to plaintiff’s experts — Defendant’s reports speculative, assumption-driven and unsupported by contemporaneous data — Reliability and probative value Practice and procedure — Evaluation of technical evidence — Court entitled to draw reasonable inferences from early multi-point failure pattern Remedies — Damages — Cost of remedial works by third party — Set-off against unpaid contract price — Quantum to be assessed separately — Interest and costs reserved for assessment Counterclaim — Balance purchase price — Allowed subject to equitable set-off — Assessment of quantum Outcome — Plaintiff’s claim allowed in part — Defendant held solely liable for pre-commissioning defects — Boiler not fit for purpose and not of merchantable quality — Damages for remedial works to be assessed — Defendant’s counterclaim allowed in part — Quantum to be determined at assessment separately
Practice Areas
Judges (1)
Judgment
Read the full judgment on the official Malaysia Courts portal.
Read on eJudgmentSource: eJudgment (ca-22ncvc-15-06-2020)