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1. Autokit Design Technologies (M) Sdn Bhd v Hyundai-Sime Darby Motors Sdn Bhd [2023] MLJU 1273
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 AUTOKIT DESIGN TECHNOLOGIES (M) SDN BHD v HYUNDAI-SIME
DARBY MOTORS SDN BHD
CaseAnalysis
| [2023] MLJU 1273

Autokit Design Technologies (M) Sdn Bhd v Hyundai-Sime Darby Motors

Sdn Bhd [2023] MLJU 1273
Malayan Law Journal Unreported

HIGH COURT (SHAH ALAM)

FAIZAH JAMALUDIN J
GUAMAN SIVIL NO BA-22NCVC-39 5-10/2020
19 June 2023

Brian Foong Mun Loong (with Anson Chee Weng Kian) (Cheang & Ariff) for the plaintiff.
Steven Wong Chin Fong (with James Ng Kean Yip) (Arifin & Partners) for the defendant.

Faizah Jamaludin J:

GROUNDS OF JUDGM ENT

Introduction

[1] This is an action by the plaintiff, Autokit Design Technologies (M) Sdn Bhd (“Autokit”), against the defendant,
Hyundai-Sime Darby Motors Sdn Bhd (“HSDM”) in respect of 270 units of Starex Bodykit & Accessories 2019
Version 3 (the “Starex Bodykits”) for the new variant of Hyundai Starex vehicles, which Autokit claims HSDM had
ordered from it through four emails dated 11.10.2019, 12.11.2019, 13.12.2019 and 18.12.2019 (the “4 emails”).

[2] HSDM denies Autokit’s claim. It says that it did not order the Bodykits for the 270 units of Starex vehicles
through the said 4 emails, and refuses to take delivery and pay for the said Bodykits. In its statement of defence,
HSDM pleaded that the supply contract under the LOA (as defined below) was subject to a separate goods
contract, whereby the Starex Bodykits were ordered through a purchase order in the form of a spreadsheet issued
by HSDM to Autokit at its vehicle yard in Jelutong, Shah Alam.

[3] After full trial, I found that based on the usual course of dealings between Autokit and HSDM, the 4 emails did
constitute an order by HSDM from Autokit of Bodykits for the 270 units of Starex vehicles that HSDM had ordered
from the Hyundai Motor Company (“HMC”) in South Korea, and accordingly, allowed Autokit’s claim.

[4] The full reasons for my decision are set out in this judgment.
Issues

[5] Autokit and HSDM had each filed separate issues to be tried.

[6] Autokit’s issues to be tried are:

(a) whether according to the usual course of business or past practices between Autokit and HSDM, it is the
nature of the transaction where Autokit is required by HSDM to supply the Starex Bodykits according to the
emails that HSDM will send Autokit the order for the Hyundai Starex vehicles that are due to arrive at
HSDM’s vehicle yard?
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Autokit Design Technologies (M) Sdn Bhd v Hyundai-Sime Darby Motors Sdn Bhd [2023] MLJU 1273

(b) Whether Autokit is required by HSDM to supply the Bodykits to HSDM according to HSDM’s order and
confirmation?
(c) Whether HSDM must pay Autokit for the Bodykits ordered for HSDM?
(d) Whether Autokit is entitled to the reliefs sought in the Re- Amended Statement of Claim dated 06.05.2022.

[7] HSDM’s issues to be tried are:

(a) Whether Autokit was required by HSDM to supply 270 units of Starex Bodykits to HSDM through the 4
emails;
(b) If the answer to the issue in (a) is in the affirmative, whether:
(i) HSDM must pay Autokit for the 270 units of the Starex Bodykits that were ordered by Autokit on
HSDM’s behalf?
(ii) Autokit is entitled to the reliefs sought in its Re-Amended Statement of Claim dated 06.05.2022? and
(iii) whether the contract between Autokit and HSDM is invalidated because of the uncertainty of terms?

[8] These issues boil down to whether, based on the usual course of dealings between the parties (i) the 4 emails
from HSDM to Autokit constituted an order by HSDM to Autokit for Bodykits for the 270 units of Starex vehicles
ordered by HSDM from HMC; (ii) whether Autokit had ordered the 270 units of Starex Bodykits from its suppliers
based on the said 4 emails; and (iii) if the answers to (i) and (ii) are in the affirmative, whether HSDM is obliged to
pay for the 270 units of Bodykits and the reasonable charges incurred by Autokit for the care and custody of the
Bodykits, and take delivery of the said Bodykits.
Burden of Proof

[9] Under sections 101 and 102 of the Evidence Act 1950, the burden is on Autokit to prove on a balance of
probabilities:
(a) that based on the usual dealings between Autokit and HSDM, the 4 emails from HSDM to Autokit
constituted an order of the Bodykits for the 270 units of Starex vehicles;
(b) that Autokit had ordered the parts and components from its suppliers for the 270 units of the Bodykits
based on the said 4 emails from HSDM;
(c) that Autokit had sent parts and components received from its suppliers to its painting contractor to be
painted in accordance with the colour breakdown of the 270 units of the Starex vehicles HSDM had
informed Autokit that it had ordered from HMC in the 4 emails; and
(d) that Autokit had stored the parts and components of the 270 units of the Starex Bodykits in a rented
warehouse since March 2020, pending delivery of the Bodykits to HSDM.

[10] And HSDM has the burden to prove on a balance of probabilities:

(a) that under the LOA, the order by HSDM of the Starex Bodykits for the “fresh stock” Starex vehicles is
subject to a separate goods contract; and
(b) that the separate goods contract is a PO in the form of a spreadsheet issued to Autokit by HSDM at its
vehicle yard in Jelutong, Shah Alam.

Background Facts

[11] Autokit is a supplier of body kits and accessories for cars. It is also an OEM (original equipment manufacturer)
of body kits and accessories for Hyundai, KIA and Peugeot branded vehicles.

[12] HSDM is one of Autokit’s customers. It is the exclusive importer and distributor of Hyundai vehicles in
Malaysia.

[13] Autokit has been supplying body kits to HSDM for its Hyundai Starex vehicles for many years. In July 2019,
they entered into a contract to supply the Starex Bodykits for the new variant of Starex vehicles.
The LOA

[14] The terms of the contract for the supply of the Starex Bodykits were contained in a Letter of Award dated
 Page 3 of 20
Autokit Design Technologies (M) Sdn Bhd v Hyundai-Sime Darby Motors Sdn Bhd [2023] MLJU 1273

15.07.2019 (the “LOA”) issued by HSDM and signed and accepted by Autokit on 22.08.2019. The LOA was valid
for two years. Pursuant to the LOA, Autokit was to supply to HSDM, the Starex Bodykits for (a) its ready
stock/registered Starex vehicles and (b) its “fresh stock” i.e., new Hyundai Starex vehicles that HSDM was
importing from HMC.

[15] The dispute before this Court relates to the supply of Starex Bodykits for 270 units of fresh stock Starex
Vehicles ordered by HSDM from HMC in November 2019.

[16] The LOA was made pursuant to a quotation dated 08.07.2019 (the “Quotation”) issued by Autokit for the
supply of the Starex Bodykits to HSDM, which comprised the following parts and components:
a) Bodykit Front Skirting – ABS Vacuum Foaming (New);
b) Bodykit Front Lips - ABS Vacuum Foaming (New);
c) Rear Bumper PP Injection (3 types of colours);
d) Dummy Exhaust Chrome with Reflector (Left/Right);
e) Side Door Cladding (x 8 pieces); and
f) Daytime Running Light (Left/Right).

[17] Autokit gave the Quotation based on a minimum order quantity (“MOQ”) of 1,000 sets of Starex Bodykits.
Nevertheless, the agreed MOQ agreed in the LOA was for 500 units. Clause 8 of the LOA states:

A volume commitment of 500 units set under this contract which to assist vendor to recover the costs of investment that
had incurred to facilitate the supply of the product for the contract. ….……In the event the volume commitment is not
fulfilled within the agreed supply period, shortfall charge will be charged based on the remaining unamortised investment
cost.

[18] Mr Low Yuan Lung (“DW4”), who is HSDM’s Managing Director, explained that during the LOA preparation,
HSDM negotiated down the MOQ for the Starex Bodykits to 500 units.
How does HSDM usually order the body kits for fresh stock Starex vehicles from Autokit?

[19] For the fresh stock Starex vehicles, Autokit is contractually required under the LOA to have the Starex
Bodykits available to be fitted onto the new Starex vehicles within two days of the vehicles arriving at HSDM’s
vehicles yard in Jelutong, Shah Alam. Clause 2(ii) of the LOA reads:

2. Delivery Term

(ii) HSDM Fresh Stock

Fitment will be carried out at the HSDM’s Jelutong Shah Alam vehicle yard or other vehicle yard located in Klang Valley.
Vendor shall ensure the products are available for vehicle fitment within 2 days after the vehicles are delivered to
HSDM. Purchase order listing will be sent on a weekly basis to vendor for billing.

[Emphasis added]

[20] Although the LOA expressly states that Autokit must have the Bodykits available to be fitted onto the new
Starex vehicles within two days of the vehicles arriving at HSDM’s vehicle yard, it is silent on how and when HSDM
is to place its order with Autokit for the said Bodykits.

[21] HSDM’s person in charge (“PIC”) of ordering the “fresh stock” of the Starex vehicles from HMC is Tan Tuan
Hwan (“DW1 Andy Tan”), who was the Head of HSDM’s complete knockdown (“CKD”) operations 2018 to 2021.
DW1 Andy Tan testified that although the Starex vehicles ordered from HMC were all complete built-up units
(“CBUs”), he was the PIC for ordering the vehicles from HMC and for issuing the advice for the firm and forecast
orders of the vehicles to HSDM’s body kit and accessories vendors.

[22] DW1 Andy Tan’s testimony is supported by HSDM’s CBU Accessories Fitment Process Flow chart (bundle
B2/p.32). The portion of the flow chart as regards the ordering to HMC and the advice to vendors is reproduced
below:
 Page 4 of 20
Autokit Design Technologies (M) Sdn Bhd v Hyundai-Sime Darby Motors Sdn Bhd [2023] MLJU 1273

[23] Under cross-examination, DW1 Andy Tan confirmed that “1+3 months firm and forecast ordering advice to
vendors” was stated on the flow chart because some vendors, including Autokit, require 1 to 3 months’ notice of
HSDM’s orders of the Starex vehicles to HMC as some of the parts and components for the body kits were ordered
from overseas.

[24] Based on its flow chart, HSDM is required to advice its vendors on the forecast orders of the Starex vehicles, 3
months before the arrival of the vehicles. And it must advice the vendors of its firm orders of the vehicles 1 month
before the arrival of the vehicles in Malaysia.

[25] Autokit’s General Manager, Tay Poh Keng (“PW1 Wendy Tay”) testified that Autokit must place the orders for
the different parts and components for the Starex Bodykits from its different suppliers in Thailand, Taiwan, Korea
and Malaysia as soon as it received the forecast orders from HSDM. She said this is because it takes
approximately two months for the parts and components to arrive in Malaysia. Once received, Autokit must send
the parts and components to its painters for them to be painted in accordance with the colour breakdown of the
Starex vehicles provided by HSDM in its emails to its vendors. This enables Autokit to meet its obligation under the
LOA to make the Bodykits available for vehicle fitment within two days of the Starex vehicles arriving at HSDM’s
vehicle yard.

[26] Both DW1 Andy Tan and HSDM’s Managing Director, Low Yuan Lung (“DW4 Mr. Low”), confirmed that the
colours of the Bodykits correspond with the colours of the Starex vehicles ordered from HMC.
The 4 Emails

[27] Details of the 4 emails, the subject-matter of this dispute, are as below.
(i) 1st email dated 11.10.2019

[28] In the email dated 11.10.2019 (the “1st email”) from Sri Luvan of HSDM to its vendors (including Autokit).
HSDM informed its vendors of (i) its firm order of 200 units of Starex vehicles that HSDM had ordered from HMC;
and (ii) its forecast order of the 270 units of Starex vehicles that HSDM may order from HMC in November 2019.
The information is contained in DW1 Andy Tan’s email of the exact date that Sri Luvan had forwarded to the
vendors in the said 1st email.

[29] DW1 Andy Tan, in his answer to Q10 of his witness statement, explained that the 1st table entitled in the email
contained the colour breakdown of its firm order of the 200 units of Starex vehicles that it had ordered from HMC.
And that the figures highlighted in green in 2nd table entitled “Order to HMC”, showed that HSDM’s firm orders of 70
Starex vehicles placed onto HMC’s system in May 2019, 30 vehicles in June 2019, 120 vehicles in September 2019
and 200 vehicles in October 2019.

[30] HSDM’s forecast order of the 270 units of the Starex vehicles was shown in the non-highlighted figure “Dec
270”. DW1 Andy Tan stated:

The non-highlighted figure of “Dec 270” was the forecast order than HSDM might enter into HMC’s system in November
2019.

[31] In his witness statement, he stated in his answer to Q10 that the 1st email of 11.10.2019 that HSDM had sent
to its vendors was similar to his earlier email of 09.02.2018, “which was a forecast in order for the accessories
vendors to prepare their stocks.”
(ii) 2nd email dated 12.11.2019

[32] HSDM informed the vendors of its firm order of the 270 units of the Starex vehicles in this email dated
12.11.2019 (the “2nd email”).
 Page 5 of 20
Autokit Design Technologies (M) Sdn Bhd v Hyundai-Sime Darby Motors Sdn Bhd [2023] MLJU 1273

[33] Sri Luvan forwarded an internal email from DW1 Andy Tan dated 08.11.2019 stating HSDM had placed its
order for the 270 units of the Starex vehicles on HMC’s system in November 2019.

[34] DW1 Andy Tan stated in his answer to Q11 in his witness statement that the 2nd email informed the vendors of
HSDM’s firm order of the 270 units of the Starex vehicles — that it had placed the order for the 270 vehicles on
HMC’s system in November 2019. He explained that the attachment to his email:

………. was an Order Summary generated by HMC’s system showing that 270 units of Hyundai Starex and 1 unit of
Hyundai Veloster that HSDM has entered into HMC’s system.

[Emphasis added]

[35] DW1 confirmed in his answer to Q11 in his witness statement that the 2nd email of 12.11.2019, was like his
earlier email of 09.02.2018, which was a forecast order for the vendors to prepare their stock. He said So, the email
that HSDM sent to the accessories vendors including ADT on 12 November 2019 …. Was like my earlier email sent
to all accessories vendors on 9 February 2018 ……….. — which was a forecast in order the accessories
vendors to prepare their stocks.”
(iii) 3rd email dated 13.12.2019

[36] In his email dated 13.12.2019 to HSDM’s vendors, Sri Luvan told the vendors that 56 units of Starex vehicles
are coming and for them to please ensure that there would be no disruption to the customers. He included in the
email a table with the heading “Ordered” and a 2nd table with the heading “ETA”.

[37] There were comments by DW1 attached to the figures in the 2nd table. He stated in his answer to Q12 of his
witness statement that the 2nd table contained details of Starex vehicles that were forecasted to arrive in Malaysia
from December 2019 to March 2020.

[38] DW1 Andy Tan comments on the 2nd table showed that 130 units of the 270 Starex vehicles were forecasted
to arrive in February 2020, and 140 units were forecasted to arrive in March 2020. At “Feb 130”, DW1 Andy Tan
commented, “Part of 270 units ordered to fulfil March 2020 sales.” He made the same comment on “March 140”.
(iv) 4th email dated 18.12.2019

[39] PW2 Sevam of Autokit replied Sri Luvan’s 3rd email of 13.12.2019, where Sevam asked him for the colour
breakdown of the 130 units of Starex vehicles that were forecasted to arrive in February 2020 and the 140 units that
were forecasted to arrive in March 2020.

[40] Sri Luvan replied in PW2 Sevam through an email dated 18.12.2019 (the “4th email”) by sending him the
colour breakdown for the 270 units of Starex vehicles. It is the same colour breakdown Sri Luvan had sent to all the
vendors in his 2nd email dated 12.11.2019.
Events after the 4 emails

[41] On the same day, Sri Luvan sent the 4th email to PW2 Sevam, DW1 Andy Tan sent a WhatsApp message to
DW3 Mahes, who is Autokit’s CEO, stating that HSDM had already informed Autokit on 12.11 2019 of the 270 units
of the Starex vehicles it had ordered from HMC and the colour breakdown of all the vehicles ordered. However,
PW2 Sevam asked for the colour breakdown again in his email of 18.12 2019 to HSDM.

[42] DW1 Andy Tan also told PW3 Mahes that HSDM only needs to give Autokit 2.5 months advance notice of its
orders for the Starex vehicle. But as regards the 270 Starex vehicles, HSDM had given Autokit 3 months’ notice – 2
months’ notice of its forecast order and 1 month’s notice of its firm order. DW1’s WhatsApp message to PW3 is
reproduced below.

DW1 12th Nov already inform u all on the 270 units of starex order.
Feb only need it. 2.5 months in advance boss. We provide
more than what we promise of 1 month firm, 2 months
forecast. & now ur sevam can come ask for colour breakdown
again
 Page 6 of 20
Autokit Design Technologies (M) Sdn Bhd v Hyundai-Sime Darby Motors Sdn Bhd [2023] MLJU 1273

[43] Also on the same day, PW3 Mahes emailed DW4 Mr Low asking him for a meeting on 30 or 31 December
2019 to discuss the issues relating to the Starex Bodykits. In the email, PW3 Mahes said that after 1000 sets, the
mould for the bodykits needs to be changed and that he would like to propose a new front skirting design with an
aluminium base mould. (The mould stated in the LOA for the front skirting is an epoxy mould: see clause 9 of the
LOA). PW3’s email reads:

Dear Mr Low,

Good day to you.

As per my conversation with Andy yesterday, we would like to get some advise and discuss on the 2020 Starex Bodykit
issues.
1. Will the current design be continued till the end of December 2020 and what is the quantity?

(i) Based on the quotation for 1000 sets given to HSDM, we have only received a PO for 500 sets instead.
Currently the quantity has increased to around 826 sets.
(ii) Above 1000 sets, the mold needs to be changed all new.

2. ……………..

3. We would like to propose an all new front skirting design with an aluminium base mold which will last longer and
have a better surface skirting parts.

Appreciate it if we could meet on either 30th or 31st December to solve these issues.

[44] I have reproduced PW3 Mahes’ email of 18.12.2019 because I find that the evidence adduced during the trial
shows that the dispute relating to the Bodykits for the 270 units stems from this email and the meeting on
02.01.2020 between PW3 Mahes together with DW4 Mr Low, DW1 Andy Tan and three other persons from HSDM.

[45] The meeting with DW4 Mr. Low, requested by PW3 Mahes in his 18.12.2019 email, took place on 02.01.2020
at HSDM’s office.

[46] PW3 Mahes’ testimony is that at the meeting, he proposed a new mould for the front skirting part of the body
kit to be produced by Autokit. He said that he had proposed the new mould as the current mould could only be used
to produce up to 1,000 pieces of the front skirting and that with HSDM’s order of body kits for the 270 units of the
Starex vehicles, Autokit would have produced close to 1,000 unit of the front skirtings. He said that the new mould
proposed did not concern the 270 units of body kits that HSDM had ordered. He said that HSDM was aware that
the mould for the front skirting is an epoxy mould as this was stated in the LOA.

[47] PW3 Mahes said that DW4 Mr. Low was unhappy with his explanation and was not agreeable with his
proposal to produce a new mould even though the new mould would be produced at Autokit’s expense.

[48] PW3 Mahes said that at the end of the meeting, DW4 Low said that HSDM will sell its Hyundai Starex vehicles
without Autokit’s body kits and that he will let Autokit know. He said, “it was as if the Defendant had wanted to
cancel the 270 units of Starex Bodykits order.”

[49] PW3 Mahes said he was shocked and taken aback by what DW4 Mr. Low had said had told him at the
meeting. Mahes said that he explained that it was too late for HSDM to cancel the order for the 270 units of the
Starex Bodykits since Autokit had placed the order for the parts and components of the 270 Bodykits in December
2019, and some of these parts and components were already on its way to Malaysia.

[50] Under cross-examination by HSDM’s counsel, PW3 Mahes testified that the 270 units were part of the 826
sets mentioned in his email of 18.12.2019 to DW4 Mr. Low. He said that Autokit would need to change the mould
after that. The excerpt of PW3 Mahes’ testimony is below:

PW3: The 270 is already done in the 826 sets

HSDM’s Counsel: You are saying that the 826 sets, the 270 was part of the 826
sets, are you saying that?
 Page 7 of 20
Autokit Design Technologies (M) Sdn Bhd v Hyundai-Sime Darby Motors Sdn Bhd [2023] MLJU 1273

PW3: Yes, after that, we need to change the mold.

[51] DW4 Mr. Low’s account as regards the issue of the new mould and the meeting on 02.01.2019 between
HSDM and PW3 Mahes is as below:

“In Mr. Mahes’ email, he wanted to meet HSDM on either 301.12.2019 or 21.12.2019 to discuss on the new mould issue.

I suggested that the meeting be held on 2 January 202 instead.

In the meeting on 2 january 2020, Mr Mahes told Andy Tan and me that the mould for the “Body Kits” was deteriorating and
that he needed HSDM to invest in a new mould and to commit to a new minimum order quantity (“MOQ”) to enable ADT to
continue with the production of the Hyundai Starex “Body Kits” in the future.

Mr. Mahes told Andy Tan and me that ADT at that time could not produce “Body Kits” for the batch of 270 Hyundai Starex
vehicles that HSDM had ordered from HMC (‘270 batch”) without investing in a new mould.

He wanted a new mould for the 270 batch onwards.

Mr. Mahes then asked whether ADT should proceed to order from ADT’s supplies for the 270 batch as per Andy Tan’s
ordering forecast to HMC.

My reply to Mr. Mahes was not to proceed with the 270 batch.

Thereafter, I told Andy Tan to officially write to ADT to stop the production of the 270 batch ……………

[52] On 08.01.2020, DW1 Andy Tan emailed PW3 Mahes telling him not to proceed with the production of the body
kits for the 270 units of Starex vehicles. He told Mahes that Autokit needed only produce the body kits for the 200
units. DW1 Andy Tan ended his email by telling PW3 Mahes that they will advise him further when we have clearer
direction from management. DW1’s email to PW3 is reproduced below:

Subject: 2020 Starex

Meeting Dear Mahes,

Please do not proceed with the your bodykit production for the 270 units. You only need to supply until the 200 units (56
units ETA 27/12, 44 units ETA 3/1, 88 units ETA 16/1, 18 units ETA 6/2).

We will advise you when we have clearer direction from the management. Order to HMC

[53] The “Dec 270” column in his DW1 Andy Tan’s email to Mahes was marked in red. Under cross-examination by
Autokit’s counsel, he agreed that “Dec 270” was marked in red to tell Mahes to stop production of the 270 bodykits.

[54] Under cross-examination, DW1 Andy Tan said that he had asked Autokit to stop production of the 270 units.
He said he highlighted “Dec 270” in red because he wanted PW3 Mahes to know which 270 he meant.

[55] DW1 Andy Tan initially disagreed with Autokit’s counsel’s suggestion that the red meant the 270 bodykits.
DW1 said that it meant 270 vehicles.

But when challenged by Autokit’s counsel that the 270 cannot mean that HSDM had stopped the order of the 270
vehicles from HMC because the 270 units of the Starex vehicles did arrive in Malaysia, DW1 Andy Tan changed his
testimony — he agreed that the 270 did not mean the Starex vehicles. The excerpt of DW1’s testimony on this
issue is reproduced below:
 Page 8 of 20
Autokit Design Technologies (M) Sdn Bhd v Hyundai-Sime Darby Motors Sdn Bhd [2023] MLJU 1273

DW1: Ok the 270 units of vehicles that I placed with principal, it

arrived on starting from Feb, 82 units. And then they arrived at
the port subsequently, another 126 units. Then another 32
units in May.

Plaintiff’s Counsel: Right. So this ETA Port. So they did arrive subsequently. Am I
correct?

DW1: Yes

…………………..

Plaintiff’s Counsel: Ok, sure, I’ll break it down for you. We have established No.1
that the 270 units of Starex ordered by HSDM from HMC
did arrive?

DW1: Yes.

[Emphasis added]

[56] He then agreed that the 270 marked in red meant the bodykits:

Autokit’s Counsel: Wait, let me just be clear, Andy just listen. Let me just be clear.
When you mark there, red 270 body kit, are you telling
Maheswaran that HSDM has stopped the ordered of the
ordering of the 270 vehicles with HMC?

DW1: No.

Autokit’s Counsel: No, ok. You said no. So given the fact that the 270 stoppage
is not for the vehicles, 270 here to stop the production of
the body kits. Am I correct?

DW1: Yes.

[Emphasis added]

[57] During re-examination by HSDM’s counsel, DW1 Andy Tan explained in his email of 08.01.2020 to PW3
Mahes that he did not want Autokit to supply the bodykits for the batch of 270 vehicles that HSDM had ordered from
HMC. The excerpt of DW1’s testimony is reproduced below:

DW1: x2026;…. This is, what I’ve shown on the Table here is
actually the order of the vehicles to our principal. So when I
say that they do not have to, do not proceed with the body
kit production that means I do not want them to supply the
body kits for the 270 units that batch. So if there’s any
body kit order from this batch, you don’t have to supply.
You only have to supply the body kit for the 200 units batch, if
there’s any. That’s why I’m trying to say. That’s why I sort of
like stuttering when Mr Foong asked me because I need to
rephrase it. So is the stop the production for the 270 units, is
not stop the 270 body kit production.

[Emphasis added]

[58] A day before DW1 Andy Tan sent the email of 08.01.2020 to PW3 Mahes, PW1 Wendy Tay had sent a
WhatsApp message on 07.01.2020 to DW1 asking him “after the 270 cars roughly when we will receive the forecast
email.” DW1 Andy Tan replied to PW1 Wendy Tay that for the 270 vehicles, HSDM had already sent the forecast
 Page 9 of 20
Autokit Design Technologies (M) Sdn Bhd v Hyundai-Sime Darby Motors Sdn Bhd [2023] MLJU 1273

email. PW1 clarified that she asked for the forecast email after the 270 vehicles. DW1 replied that there would be
no order after the 270 vehicles and that the 270 was the last order. The WhatsApp conversation between PW1 and
DW1 on 07.01.2020 is reproduced below.

PW1 After the 270 cars roughly when we will receive the forecast
email

DW1 Ady sent I forward to u again Actually u can refer to mahes He

is in the loop

PW1 U mean u send forecast after the 270?

DW1 For the 270

PW1 270 we got it edi I am asking after 270

DW1 No order after 270 270 last order

PW1 OIC.. Okok

[Emphasis added]

[59] During cross-examination by Autokit’s counsel, DW1 Andy Tan initially denied that “No order after 270. 270
last order” in his WhatsApp message to PW1 referred to the HSDM’s order for the bodykits. He said that it referred
to HSDM’s vehicle order. DW1 said that “270 last order” meant that it was the last order that he had placed with
HMC. But when challenged again by Autokit’s counsel, DW1 changed his testimony and said that after the 270
vehicles, HSDM ordered more Starex vehicles from HMC.

[60] PW1 Wendy Tay sent a WhatsApp message on 08.01.2020 to DW1 Andy Tan after he had sent the email on
08.01.2020 to PW3 Mahes (PW1 Wendy Tay was one of the addressees of the email) asking him about the
cancellation of the 270 bodykits. Her WhatsApp conversation with DW1 on this issue (in bundle B2 p.58) is
reproduced below:

PW1 H Andy, just saw ur email 270 cancel? We have already paid
deposit to supplier and already half way producing Cannot
cancel anymore.

DW1 This is direction from our management Wer not able to commit
on this Sry can’t help

[61] PW1 Wendy Tay told DW1 Andy Tan that Autokit could not cancel the order for the 270 Starex vehicles
because they had paid deposits to their supplier and the bodykits were half-way being produced. DW1 Andy Tan
replied PW1 stating, “This is direction from our management. We r not able to commit on this. Sry can’t help.” He
did not state that HDSM did not order from Autokit the 270 units of Starex Bodykits.

[62] When asked during cross-examination about his WhatsApp message to PW1 Wendy Tay on 08.01.2020,
DW1 Andy Tan confirmed that the conversation referred to the bodykits. DW1’s testimony is reproduced below:

DW1: This is the direction from our management. We are not able to
commit on this. Sorry. Can’t help.

Autokit’s Counsel: Ok. So that we’re on the same page. The conversation on
the 8th of January, the 270 cancel, refers to the car or the
body kit?

DW1: To the body kit.

……………..
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Autokit Design Technologies (M) Sdn Bhd v Hyundai-Sime Darby Motors Sdn Bhd [2023] MLJU 1273

Autokit’s Counsel: Now Andy, isn’t it correct from the WhatsApp conversation
at page 58 between you and Wendy, HSDM had cancelled
the 270 order for the Starex body kit?

DW1: Yes, what we trying to say is that you do not have to

supply for this 270 units.

Autokit’s Counsel: Yes, because the words used is, because you say, “This is a
direction from our management.” That’s what you said, right?

DW1: Yes.

Autokit’s Counsel: And the reason that was offered to Wendy was because you
say we are not able to commit on this. Agree?

DW1: Yes

Autokit’s Counsel: We here, means HSDM. Correct?

DW1: We here, means HSDM, yes.

Autokit’s Counsel: Yes

DW1: Because we do not want them to supply for this 270 units
of Starex order

Autokit’s Counsel: Yes. And Wendy already told you, cannot cancel anymore
because they already paid deposit to the supplier and already
half way producing. Do you agree, that’s what Wendy said to
you?

DW1: Yes

[Emphasis added]

[63] The next day, on 09.01.2020 at 11.01 am, PW1 Wendy Tay emailed DW1 Andy Tan. DW4 Mr. Low was
copied on the email. PW1 informed DW1 that Autokit could not accept HSDM’s cancellation of the order of bodykits
for the 270 units of Starex vehicles because, based on HSDM’s emails to its vendors from 08.11.2019 to
18.12.2019 where it had informed all its vendors to proceed with the 270 units, Autokit had ordered all its stocks
and some of the parts have arrived. Her email reads:

Subject: RE: Cancelation of 270

orders Dear Andy,

Good morning to you.

Refer to the below trailing email send by your Goodself and Mr Sriluvan on 8th Nov 2019 till 18th Dec 2019 you have
informed all Vendors to Proceed on the 270 Units with Color Breakdown as well. We have follow the instruction given by
HSDM and have ordered all our stocks

Since Nov 2019. We have checked with the production, they have proceeded and some of the parts has arrived.

Therefore we are sorry we could not accept the cancelation on the 270 orders. Thank you.

[64] At 3.12 pm on 09.01.2020, DW4 Mr. Low replied PW1 Wendy Tay’s email, where he told her to stop the
ordering. His email reads:

Subject: RE: Cancelation of 270 orders

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Autokit Design Technologies (M) Sdn Bhd v Hyundai-Sime Darby Motors Sdn Bhd [2023] MLJU 1273

Hi Wendy,

Our discussion with Mahes on 2nd Jan 2020, he mentioned and ask whether shall order or not the batch of 270, furthermore
he was asking MOQ for this batch onward. Your email today mentioned already ordered and arrived. As the stock might
have further delay due to reasons, please stop the ordering. Kindly communicate with Mr Mahes closely for consistency in
communication to us

Best Regards,

Low Yuan Lung

Managing Director

Hyundai-Sime Darby Motors Sdn Bhd

[65] PW1 Wendy Tay replied to DW4 Mr. Low’s email explaining that at the meeting on 02.1.2020, PW3 Mahes
had mentioned whether Autokit should order bodykits after the 270 batches. She stated that Autokit had ordered
300 sets for the 270 orders. She explained to DW4 Mr. Low that the MOQ raised by PW3 Mahes was for Autokit’s
supplier to plan further to produce a new mould for the bodykits at Autokit’s cost. She ended her email to DW4 Mr.
Low by stating:

Please understand our situation here as we have placed order and paid suppliers for them to produce. If you are worry
about the supply, we can assure here that there are no issue on supplying the bodykit for 270 units and for future if there is
any extra orders.

[66] Later at 8.40 pm on the same day, DW4 Mr Low replied to PW1 Wendy Tay’s second email, where he told
her:

Due to unforeseen circumstances, pls stop the ordering and you may continue to supply the bodykit up to all the
incoming or existing Starex before the 270 batch. Thanks

[Emphasis added]

[67] About a month later, on 05.02.2020 and 06.02.2020, DW1 Andy Tan had a WhatsApp conversation with PW3
Mahes. Screenshots of the WhatsApp conversation are exhibited in bundle B2, pp.70-73. In the WhatsApp
conversation, PW3 Mahes asked DW1 Andy Tan for the minutes of the meeting between Autokit and HSDM. DW1
Andy Tan replied to PW3’s request, “Morning bro, my boss dun allow me to give ……. He said u should write ur
own minutes.”

[68] DW1 Andy Tan then asked PW3 Mahes where the Defendant’s warehouse was because his boss wanted to
see the 270 sets of Bodykits and all the proof of order to Autokit’s suppliers. DW1 Andy Tan said that his boss did
not believe Autokit had ordered all the parts for the Bodykits. DW1’s WhatsApp message to PW3 on 05.02.2020 (in
bundle B1 pp. 71-73 on the request for the inspection is reproduced below:

Bro, where is ur warehouse? My boss wanna see the 270 sets of body kit

& all the proof of order to ur supplier

………………

Just let him see all the parts to convince him la

He doesn’t believe u got in the parts

The longer u drag it makes it more suspicious

Tmr let him go to ur warehouse, painter & supplier. Then let him know how many otw. Just like doing stock count.
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Autokit Design Technologies (M) Sdn Bhd v Hyundai-Sime Darby Motors Sdn Bhd [2023] MLJU 1273

Then gao dim & close story law. Very tiring la bro

[69] DW4 Mr. Low, under cross-examination, confirmed that he had asked for the inspection of the 270 Starex
bodykit because he did not believe that Autokit had ordered the parts. DW4 also confirmed that during the
inspection on 10.02.2020, they had gone to 2 premises — Ho Huat, the painter, and Macpac, the warehouse where
Autokit stored the parts.

[70] On 07.02.2020, PW3 Mahes, through a Whatsapp message to DW1 Andy Tan informed him that “front skirting
and lip from the 1st container arrived 3 days ago and 2nd coming now shortly and 3rd on Monday or Tuesday.” He
went on to ask DW1 Andy Tan to explain to his boss that Autokit had prepared and arranged the 270 sets of the
bodykits “so that we don’t delay on our supply to HSDM.”

[71] DW1 Andy Tan also asked PW3 Mahes for proof of Autokit’s orders from its suppliers. PW3 replied that PW1
Wendy Tay would email the orders.

DW1 Bro, how abt proof of ur order to ur supplier?

PW3 Sure, wendy will send by email

[72] DW1 Andy Tan agreed under cross-examination that “270 sets of bodykit” in his WhatsApp message referred
to the Autokit’s 270 sets of the Starex Bodykit.

[73] DW1 confirmed that he wanted PW3 Mahes to show the bodykits because his boss, DW4 Mr. Low, did not
believe that Autokit had procured the bodykits. DW4 Mr Low, under cross-examination, agreed that he had asked
for the inspection of 270 Starex Bodykits because he did not believe that Autokit had ordered the parts for the
bodykits:

Autokit’s Counsel: Okay now, agree with me that the reason why you requested
for the inspection was that you wanted to inspect the 270
Starex body kits because you did not believe that the Plaintiff
had ordered those parts, do you agree?

DW4: Agree.

[74] DW1 Andy Tan confirmed that he, DW4 Mr. Low and two others from HSDM had conducted a joint inspection
of the bodykits at Autokit’s warehouse and the painters on 10.02.2020. He said that PW2 Sevam had attended to
them during the inspection and that PW2 had brought them to Ho Huat, the painter, and also to Mac Pack. Also,
PW2 had told him some of the 270 bodykits were on the way.

[75] After the joint inspection between Autokit and HSDM of the Bodykits on 10.02.2020, on 11.02.2020, Sri Luvan
of HSDM emailed PW2 Sevam and PW3 Mahes, which was copied to DW1 Andy Tan. The email reads:

Subject: Starex Order: Mar 2020

Dear Mr. Mahes,

Following are the details for the 120 units of Starex that had been ordered. Please ensure that there is no disruption in
delivery to customers.

IMPORTANT NOTE:

Kindly cease supplying the “Bodykit Starex 2019 Ver 3” after the 200 units ordered to HMC in Nov (highlighted in
yellow, below). The last ETA of this batch is 6th Feb (18 units). As for all other parts supplied by your company such as the
“Tailgate Chrome Handle” and the “Plus Emblem”, supply is to continue as usual.
 Page 13 of 20
Autokit Design Technologies (M) Sdn Bhd v Hyundai-Sime Darby Motors Sdn Bhd [2023] MLJU 1273

Orde r to HMC

[Emphasis added]

[76] On 02.03.2020, PW1 Wendy Tay emailed DW4 Low and DW1 Andy Tay, asking them about the status of the
270 orders. She wrote:

Dear Mr Low,

Good afternoon to you. May I know what is the status on the 270 orders? As all stocks already in warehouse, we would like
to know what will be your advice to us?

Looking forward to hearing from you soon. Thank you.

[77] DW1 Andy Tay replied to PW1’s email on 09.03.2020 at 9.48 am. He stated:

Dear Wendy,

As per Mr Low’s email on 9th of January, please stop the supply of bodykit for the 270 units. We will issue you an official
letter to you later on.

Regards,

Andy

[78] At the trial, DW1 Andy Tay confirmed that DW4 Mr. Low had instructed him to reply to PW1’s email. Both DW1
and DW4 agreed that HSDM never issued an official letter to Autokit.

[79] Under cross-examination, DW4 Mr Low was referred to his email of 09.01.2020 and DW1 Andy Tan’s email of
09.03.2020 to PW1 Wendy Tay. He agreed that in these two emails HSDM had requested Autokit to stop the supply
of the body kits. The excerpt of DW4’s testimony is reproduced below:

Autokit’s Counsel: No, do you agree with me as following these 2 emails which I
have shown you, the Defendant has actually requested the
Plaintiff to stop the supply of the body kits, agree?

DW4: Agree

[Emphasis added]
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Autokit Design Technologies (M) Sdn Bhd v Hyundai-Sime Darby Motors Sdn Bhd [2023] MLJU 1273

[80] DW4 Mr Low also agreed that HSDM, in both these emails, did not take the position that it did not order the
270 body kits from Autokit. The excerpt of DW4’s testimony is reproduced below:

Autokit’s Counsel: From these 2 emails, the Defendant did not take a position
that he did not order, that it did not order the 270 body kits
from the Plaintiff. Do you agree?

DW4: Agree

[81] As can be seen from the excerpt of his testimony below, DW4 also agreed that HSDM’s reason for stopping
the supply of the 270 body kits was due to unforeseen circumstances.

Autokit’s Counsel: Do you agree with me Mr. Low, that your reason for stopping
the supply of the 270 units was due to unforeseen
circumstances?

DW4: Correct

[82] During re-examination by HSDM’s counsel, DW4 Mr Low explained that the “unforeseen circumstances” that
he stated in his email of 09.01.2020 to PW1 Wendy Tay for stopping the supply of the 270 body kits were because
he was concerned by what he said PW3 Mahes had told him at the meeting on 02.01.2020 that the mould for the
bodykits was deteriorating. The excerpt of DW4 Mr Low’s reply to HSDM’s counsel is reproduced below:

DW4: Yes, Mahes mentioned the mold is deteriorating. I think I put it

in my witness statement, the mold is deteriorating. When the
mold is deteriorating then what is next? Next is to invest in on
a new mold and invest in a mould he want us to chip in to
invest and when I say no he says okay I still can proceeds to
order the 270 body kits at the end of the meeting. So that
shows inconsistency and he asked me during the meeting to
give him a new MOQ because knowing that the 500 has been
fulfilled which I told him by telling me the mold is deteriorating
how am I going to give you a new commitment because you
know, we are Hyundai Sime Darby Motors, we are the
authorised sole distributor of Hyundai vehicle in Malaysia, we
are the brand custodian. I cannot be allowing this. That is why
I told him since you cannot produce with the deteriorating
mold, don’t produce then when Wendy comes in and tell me all
ready on the way, coming in the shipment arrived it creates
curiosity you see.

[83] DW4 Mr. Low, during re-examination, further explained that there were a lot of unforeseen circumstances and
that part of the unforeseen circumstances was because the shipment of the 270 units of Starex vehicles that HSDM
had ordered from HMC kept being delayed. He said that HSDM could not ascertain when the vehicles were arriving
because of a delay in shipment, and at that time, there was the MCO, so he was curious when Mahes said that
bodykits had arrived, and for this reason, DW4 Mr. Lau wanted to inspect the parts.

[84] It is evident from DW4 Mr Low’s testimony that the “unforeseen circumstances” in his email to PW1 Wendy
Tay were (i) his belief that the mould for the Bodykit are deteriorating and Mahes wanting HSDM to invest in a new
mould; and (ii) the delay in shipment of the 270 units of Starex vehicles by HMC from South Korea to Malaysia. It
was not because HSDM did not order from Autokit the Bodykits for the 270 units of Starex vehicles.
Law on Course of Dealings

[85] The law is settled that Courts may import terms from a previous course of dealings between the parties into a
contract. see Popular Industries Limited v Eastern Garment Manufacturing Sdn Bhd [1989] 3 MLJ 360; [1990] 1
CLJ 133.
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Autokit Design Technologies (M) Sdn Bhd v Hyundai-Sime Darby Motors Sdn Bhd [2023] MLJU 1273

[86] In Popular Industries, Edgar Joseph Jr. cited with approval the decision of the English Court of Appeal in
Amalgamated Investment & Property Co Ltd (in liquidation) v Texas Commerce International Bank Ltd [1981] 3 All
ER 577; [1982] QB 84, which held that course of dealings may be used to:
(a) complete a contract that would otherwise be incomplete: see Brogden v. Metropolitan Railway Co. (1877)
2 App.Cas. 666, 682, per Lord Hatherley;
(b) introduce terms and conditions into a contract that were not already there: see J. Spurling Ltd. v. Bradshaw
[1956] 1 W.L.R. 461 Hardwick Game Farm v. Suffolk Agricultural Poultry Producers Association [1966] 1
W.L.R. 287, 308, 316, 317, C.A.; and [1969] 2 A.C. 31, 90, per Lord Morris of Borth-y-Gest; p. 104, per
Lord Guest, and p. 113, per Lord Pearce; or
(c) add to or vary terms of a contract which are already there or interpret such terms.

[87] The legal principles as regards the course of dealings as held in Amalgamated Investment & Property can
be summarised as follows:
(i) Conduct of the parties subsequent to a contract is convincing evidence of a course of dealing after a
contract had been entered;
(ii) A course of dealing may:
(a) give rise to legal obligations;
(b) be used to complete a contract which would otherwise be incomplete;
(c) be used to introduce terms and conditions into a contract which would not otherwise be there;
(d) be used to add to, or vary, terms which are there already or to interpret them; and
(iii) If parties to a contract have put their own interpretation on their contract by their course of dealing, they are
not allowed to go back on the interpretation. In other words, parties, who by their course of dealing, have
adopted a “conventional basis” for the governance of the relations between them are bound by the
“conventional basis” on which they conducted their affairs.

[88] These legal principles were applied by the High Court in Popular Industries (supra) and the Court of Appeal
in Pinsia Development Sdn Bhd & Ors v Hj Abdul Hadi Ahmad & Ors [2005] 2 MLJ 32; [2005] 1 CLJ 416; [2005] 1
AMR 243. Gopal Sri Ram JCA (as he then was) in Pinsia Development held:

“……… it is equally well settled that parties may by their subsequent conduct give a term in an agreement a particular
meaning. See, American Surety Co of New York v Calgary Mining Co Ltd (1919) 48 DLR 295, a decision of the Privy
Council. In such an event it is that meaning which binds the court and the court is not then entitled to discover some other
meaning in the exercise of its interpretive jurisdiction. See Amalgamated Investment & Property Co Ltd (In Liquidation) v
Texas Commerce Bank [1982] QB 84 Boustead Trading (1985) Sdn Bhd v Arab Malaysian Merchant Bank Bhd [1995] 4
CLJ 283.”

Analysis and Findings of Court

Issue 1: Did the 4 emails from HSDM to Autokit constitute an order by HSDM for the Bodykits for the 270
units of Starex vehicles?

[89] The terms and conditions of the LOA are incomplete in that it only states when Autokit is to supply the body
kits for the new Starex vehicles, within two days of the vehicles arriving at HSDM’s vehicle yard in Jelutong, Shah
Alam. It does not state when and how HSDM is to place its order for the bodykits.

[90] As held in Popular Industries and Amalgamated Investment & Property, a course of dealing may be used
to complete an incomplete contract. Hence, this Court may look at the usual course of dealings between Autokit
and HSDM to determine how and when HSDM places its orders of the Bodykits under the LOA.

[91] Each Bodykit comprises several parts and components, which Autokit must order from its suppliers in
Malaysia and overseas. These parts and components require approximately 2 months to manufacture and ship to
Malaysia. These parts and components would then have to be painted in accordance with the colour breakdown of
the Starex vehicles that HSDM had ordered from HMC.
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[92] Because of the need for this lead time in manufacturing the body- kits, HSDM’s own flow chart stipulates that
HSDM is giving its vendors 1 month’s firm & 3 months’ forecast ordering advice. This is to give the vendors,
including Autokit, sufficient lead time to procure the various parts and components for the Bodykits from their
suppliers and to paint these parts and components in accordance with the colour breakdown of the Starex vehicles.

[93] It is an agreed fact that the usual business dealings between the parties that HSDM will send an email
detailing its forecast orders of Starex vehicles, including the colour and quantity of the vehicles, are due to arrive in
Malaysia. Clause 8 of the statement of agreed facts reads:

“8. Amalan-amalan perniagaan diantara Plaintiff dengan Defendan adalah seperti dinyatakan di bawah:

8.1 Defendan akan menghantar e-mel yang mengandungi ramalan tempahan (forecast orders) kereta Starex kepada
Plaintif. Tempahan tersebut mengandungi kuantiti dan warna kereta Starex yang bakal akan tiba di Malaysia.”

[94] Under section 58(1) of the Evidence Act 1950 facts that are admitted need not be proved. Thus, Autokit is not
required to prove that the usual course of dealings between the parties is that HSDM will send Autokit an email
containing forecast orders of the Starex vehicles with details of the quantity and colour of the Starex vehicles that
will be arriving in Malaysia.

[95] The evidence shows that in the usual course of dealings between HSDM and Autokit, HSDM’s first email is
then followed by subsequent emails from HSDM informing Autokit of its “firm order” of the Starex vehicles: these
subsequent emails will include details of the number and colour breakdown of the vehicles that HSDM had ordered
from HMC.

They would also include the forecast and firm estimated time of arrival (“ETA”) of these vehicles in Port Kelang.

[96] In this instant case, the facts show that in HSDM’s 1st email of 11.10.2019, HSDM had informed its vendors of
the firm order of 200 Starex vehicles and the forecast order of 270 Starex vehicles. In its 2nd email of 12.11.2019,
HSDM informed Autokit and its other vendors of its firm order of the 270 vehicles and the colour breakdown of the
270 vehicles ordered. And its 3rd email of 13.12.2019, HDSM had informed its vendors of the dates the 270 units of
Starex vehicles were due to arrive.

[97] DW1 Andy Tan, in his WhatsApp message of 18.12.2019 to PW3 Mahes, stated that “12th Nov already inform
u all on the 270 units of Starex order”, i.e., that HSDM had already informed its vendors of the colour breakdown for
the 270 units in the 12.11.2019 email but PW2 Sevam asked for the colour breakdown again in his December
email. DW1 also told PW3 that as HSDM only needed the bodykits in February 2020, HSDM had given Autokit 2.5
months’ notice, which was more than what HSDM had promised of 1 month’s firm order and two months forecast
order.

[98] HSDM, in their Re-Amended Defence, had pleaded their order of the purchase of the Starex Bodykits was
subject to a separate goods contract, in that the Starex Bodykits were ordered through a purchase order in the form
of a spreadsheet issued by HSDM to Autokit at its Jelutong vehicle yard. However, HSDM failed to prove through
any of the documents or its witnesses during the trial that purchase orders in the form of a spreadsheet were ever
given to Autokit’s representatives at the Jelutong vehicle yard.

[99] According to HSDM, the purchase order is in the form of spreadsheets in bundle C/p. 18 to 23 (marked as
exhibit “D9”). DW1 Andy Tan was asked during cross-examination whether he had forwarded the spreadsheets in
exhibit “D9” to any of the vendors. DW1 Andy Tan said he did not forward the spreadsheets to any vendors or
Autokit. He could not prove that the spreadsheets were forwarded to the Autokit or passed to any of its
representatives at the Jelutong vehicle yard.

[100] Additionally, DW1 Andy Tan confirmed that the spreadsheets in D9 were not purchase orders. The excerpt of
his testimony is below:

Autokit’s Counsel: ……. These are not purchase orders, am I correct Andy?

DW1: This is not purchase order.

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Autokit Design Technologies (M) Sdn Bhd v Hyundai-Sime Darby Motors Sdn Bhd [2023] MLJU 1273

[101] Mr. Brian Foong, counsel for Autokit, took DW1 Andy Tan through all the documents in bundles B1 and B2.
DW1 Andy Tan confirmed that none of the emails, WhatsApp messages or other documents in both bundles
mentioned the spreadsheets in the exhibit “D9”. DW1 agreed that HSDM does not have any evidence to prove that
the spreadsheets in the exhibit “D9” were ever given to Autokit. He also agreed that he did not physically give the
spreadsheets to Autokit.

[102] Learned counsel for the HSDM in para. 109 of the Defendant’s written submission had stated that PW1
Wendy Tay had admitted during cross-examination that HSDM’s spreadsheet was found at bundle C/pages 1-23.
However, reading the exchange between PW1 Wendy Tay and HSDM’s counsel, I find that his submissions do not
accurately represent PW1’s testimony. From the excerpt of PW1’s testimony reproduced below, it is clear that PW1
was saying “yes” to HSDM’s counsel, asking her to look at pages 1-23 of Bundle C. She was not saying “yes”,
those spreadsheets were given to Autokit.

HSDM’s Counsel: Yes, Alright then, If that is your answer, I will take is as that.
OK, now let’s move on to the next question. Now, Question 27.
Yes, Question 27. You see that? You talked about
spreadsheets.

PW1: Yes. What spreadsheet?

HSDM’s Counsel: Now, let us look at the…. now, the spreadsheet are found in
Bundle C. Look at Bundle C, 1 to 23.

PW1: Yes

[103] I note that HSDM’s counsel omitted mentioning that PW2 Sevam testified that he had not seen the
spreadsheets in exhibit “D9” prior to trial. And that the Defendant’s witnesses, DW1 Andy Tan and DW2 Wong Ai
Ling, confirmed that the spreadsheets were not purchase orders. Also, DW3 Cyril Ratnam, the person responsible
for the day-to-day operation at HSDM’s Jelutong vehicle yard, testified that the spreadsheets such as those in “D9”
were given to HSDM’s accessory vendors, including Autokit, for purposes of installation of the Bodykits according to
the Starex vehicles’ chassis numbers listed on the spreadsheets. DW4 Cyril agreed that the spreadsheets were not
given to Autokit to order the Bodykits.

[104] Ordering and installation of the Bodykits are two very different things. The Bodykits need to be ordered
approximately 3 months in advance to enable them to be manufactured and painted in time for them to be installed
within 2 days of the Starex vehicles arriving at HSDM’s Jelutong vehicle yard.

[105] There appears to be an attempt by HSDM to conflate the two together to support its pleaded case that it did
not order the Bodykits through the 4 emails since the spreadsheets in exhibit “D9” were not issued to Autokit for the
270 units of the Bodykits. However, the testimonies of its witnesses and its process flow chart (CBU Accessories
Fitment Process Flow) contradict this narrative.

[106] If indeed the usual course of dealings between the parties was HSDM ordered the Bodykits from Autokit
through spreadsheets given by HSDM to Autokit at the Jelutong vehicle yard, it would be practically impossible for
Autokit to comply with the requirement in the LOA that it makes the Bodykits available to be fitted on the Starex
vehicles within 2 days of the vehicles arriving at the Jelutong vehicle yard since the parts and components require a
lead time of 2 months to be manufactured and painted in accordance with the colour breakdown of the Starex
vehicles ordered.

[107] Furthermore, if indeed the Bodykits were ordered through the spreadsheets given to its vendors at the
Jelutong vehicle yard, why is it HSDM’s process flow chart stipulates that the HSDM is required to give “1 +3 Firm &
Forecast Ordering Advice to Vendors”. And why is it that the ordering of the Bodykit through the giving of the
purchase order in the form of a spreadsheet at the Jelutong vehicle yard is not an item on the process flow chart?
Ordering the Bodykits from the vendors is fundamental to enabling the Bodykits to be installed on HSDM’s fresh
stock Starex vehicles; hence, it should be on the process flow chart.

[108] The fact that the process flow chart states that HSDM is required to give “1 +3 Firm & Forecast Ordering
Advice to Vendors” after it ordered the vehicles from HMC and the fact there is no requirement on the process flow
chart that purchase order in the form of a spreadsheet is to be given to the vendors at the Jelutong vehicle yard,
plus HSDM’s failure to prove that the Bodykits were ordered by the giving of spreadsheets to HSDM’s vendors at
 Page 18 of 20
Autokit Design Technologies (M) Sdn Bhd v Hyundai-Sime Darby Motors Sdn Bhd [2023] MLJU 1273

the vehicle yard, supports Autokit’s contention that the usual course of dealings between the parties is that HSDM
will order the Bodykits by through its emails to its vendors informing them of its forecast orders and firm orders of
Starex vehicles from HMC.

[109] More significantly, DW4 Mr Low’s evidence is that he decided to cancel the order for the body kits for the 270
Starex vehicles after the meeting he had with PW3 Mahes on 02.01.2020 because he understood that Mahes had
told him at the meeting that the mould for the Bodykits was deteriorating and that Autokit was not able to produce
the 270 Bodykits without a new mould, which was to be at HSDM’s cost. PW3 Mahes denied that he told DW4 Mr.
Low that the new mould was to be HSDM’s costs – Mahes said that Autokit would bear the cost of the new mould.
Also, he said that the body kits for the 270 units were part of the 826 body kits produced with the existing mould. It
was only for body kits produced after the 270 body kits that required a new mould.

[110] Nonetheless, the issue for this Court’s determination is not what PW3 Mahes told DW4 Mr. Low at the
meeting on 02.01.2020 as regards the mould for the bodykits or what DW4 Mr. Low understood PW3 Mahes told
him at the meeting. The issue is whether HSDM had ordered the Bodykits for the 270 units of Starex vehicles
through the 4 emails and whether it had after the meeting with PW3 Mahes on 02.01.2020, decided to cancel its
order of the 270 Bodykits.

[111] DW4 Mr. Low agreed that in both his email of 09.01.2020 and DW1 Andy Tan’s email of 09.03.2020 to PW1
Wendy Tay, HSDM had asked Autokit to stop the supply of the body kits for the 270 Starex vehicles. Neither he nor
Andy Tan took the position in the emails that HSDM did not order the 270 bodykits from Autokit.

[112] Also, both DW1 Andy Tan and DW4 Mr. Low testified that the reason DW4 Mr. Low had asked for the joint
inspection of the body kits for the 270 Starex vehicles was because he did not believe that Autokit had the parts and
components for the body kits from its suppliers. It was not because HSDM did not order the body kits for the 270
Starex vehicles.

[113] DW4 Mr. Low had asked Autokit in his email of 09.01.2020 to PW1 to stop the supply of the body kits due to
“unforeseen circumstances”. He explained during re-examination that the “unforeseen circumstances” was his
concern by what he said PW3 Mahes had told him that the mould was deteriorating and the delay in the arrival of
the 270 units of Starex vehicles due to delays in shipment and the MCO. At no time during the trial did DW4 Mr.
Low say that the “unforeseen circumstances” was because HSDM did not order the body kits for the 270 Starex
vehicles.

[114] Both DW1 Andy Tan and DW4 Mr. Low confirmed that HSDM did not cancel its order of the 270 units of
Starex vehicles and that the vehicles arrived in Malaysia. DW1 Andy Tan confirmed that HSDM engaged another
vendor to supply the body kits for the 270 Starex vehicles after it had asked Autokit to stop the supply. His
testimony is reproduced below. “ADT” refers to Autokit:

DW1: Yes. We do not immediately appoint another vendor right after

we asked ADT to stop the supply but actually proceed to
source the body kit.

[115] Accordingly, on the available evidence produced during the trial, this Court finds that Autokit has proven on a
balance of probabilities that, based on its usual dealings, the 4 emails constituted an order by HSDM of Bodykits for
the 270 units of Starex vehicles that it had ordered from HMC. Based on the usual dealings between the parties,
Autokit is obliged to supply HSDM the Bodykits it had ordered for the 270 units of Starex vehicles.

[116] I further find that the Defendant had failed to prove on a balance of probabilities that under the LOA, HSDM’s
order of the Starex Bodykits for the “fresh stock” Starex vehicles was subject to a separate goods contract. The
Defendant also failed to prove the purported separate goods contract is a purchase order in the form of a
spreadsheet issued to Autokit by HSDM at its vehicle yard in Jelutong, Shah Alam. The Defendant failed to prove
during the trial that the spreadsheets in “D9” were ever given to the Plaintiff at the Jelutong vehicle yard. Also, DW4
Cyril Ratnam confirmed that the spreadsheets were given to the accessories vendor for the installation and not the
order of the Bodykits. As HSDM never took delivery of the Bodykits for installation on the 270 units of the Starex
vehicles when they arrived at the Jelutong vehicle yard, it follows that the spreadsheets in exhibit “D9” was never
given to Autokit.
Issue 2: Did Autokit purchase the parts and components for the Bodykits from its suppliers based on the
order made by HSDM in the 4 emails?
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Autokit Design Technologies (M) Sdn Bhd v Hyundai-Sime Darby Motors Sdn Bhd [2023] MLJU 1273

[117] Autokit’s case is that based on these 4 emails from HSDM, Autokit proceeded to order parts and components
for the Starex Bodykits from its overseas suppliers.

[118] Autokit’s purchase orders to its overseas suppliers are shown in exhibits “P8A”, “P8B” and “P8C” at Bundle
C, p.40, 44 and 48. Exhibits “P8A”, “P8B” and “P8C” show that Autokit had placed its orders from its suppliers on
17.12.2019 and 06.01.2020.

[119] From my physical inspection of the original documents of the copies marked as exhibits “P8A”, “P8B” and
“P8C”, I find that the documents are genuine and are not forgeries. Moreover, the parties had agreed during the trial
for the documents to be admitted as evidence and marked as exhibits “P8A”, “P8B” and “P8C”. As the documents
have been admitted as evidence, marked as exhibits and converted to Part B documents during the trial, it is not
open for HSDM to dispute the authenticity of Autokit’s purchase orders to its suppliers: see Order 34 rule 2(2)(e)(i)
of the Rules of Court 2012 Melawangi Sdn Bhd v Tiow Weng Theong [2020] 4 CLJ 1; [2020] 2 AMR 505, FC.

[120] I find that based on the said purchase orders and the testimonies of the PW1, PW2 and PW3, Autokit did
purchase the parts and components for the Bodykits from its suppliers pursuant to the order made by HSDM in the
said 4 emails.
Issue 3: Is HSDM obliged to pay for the 270 units of Bodykits and take delivery of the said Bodykits?

[121] This Court based on the evidence before it and the usual dealings between Autokit and HSDM, has found
that the 4 emails constituted an order by HSDM to Autokit of Bodykits for the 270 Starex vehicles that it had ordered
from HMC.

[122] Under section 31 of the Sales of Goods Act 1957 (“SOGA”), Autokit as the seller is under a duty to deliver
the 270 units of Bodykits and HSDM as the buyer is under a duty to pay for the said Bodykits in accordance with the
terms of the contract between them. Section 31 reads:

It is the duty of the seller to deliver the goods and of the buyer to accept and pay for them in accordance with the terms of
the contract of sale.

[123] Section 44 of SOGA states that a buyer is liable to a seller for any loss occasioned by the buyer’s neglect or
refusal to take delivery of the goods and for reasonable charges for the care and custody of the goods. Thus,
HSDM must also pay for the storage charges incurred by Autokit for the care and custody of the Bodykits, pending
HSDM taking delivery of the said Bodykits.

[124] Section 56 of SOGA provides that a seller can sue a buyer for damages for non-acceptance of the goods.
Section 56 reads:

Where the buyer wrongfully neglects or refuses to accept and pay for the goods the seller may sue him for damages for
non-acceptance.

[125] Clause 10 of the LOA expressly states that Autokit shall not use the Bodykit design other than in connection
with the sales of the Bodykit to HSDM under the LOA. As Autokit is prohibited from selling the Bodykits

other than to HSDM under the terms of the LOA, the loss and damages suffered by Autokit as a result of HSDM’s
refusal to take delivery of the Bodykits and make payment for the same have to be determined based on the terms
of the contract agreed between them: see Xcess Networks (M) Sdn Bhd v Huawei Technologies (M) Sdn Bhd
[2018] 9 MLJ 539; [2017] 1 LNS 2324.

[126] The price contractually agreed by the parties in the LOA is the sum of RM4,417.15 for each unit of the Starex
Bodykit without installation. With the installation of the Bodykits to the vehicles, the contractually agreed price is
RM4,617.15 per unit. Hence, the total contractually agreed price, without installation, for the 270 units of Bodykits is
RM1,246,630.50.

[127] Autokit, in its Writ and Re-Amended Statement of Claim, claims the lesser sum of RM1,139,670.00 for the
270 units of Starex Bodykits. It also claims the sum of RM10,160.00 for the painting of the said Bodykits separately.
The total amount claimed by Autokit for the Bodykits plus the painting of the Bodykits is RM1,149,830.00, which is
less than the contractually agreed price for 270 units of Bodykits of RM1,246,630.50, without installation, for the
said 270 units of the Bodykits.
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Autokit Design Technologies (M) Sdn Bhd v Hyundai-Sime Darby Motors Sdn Bhd [2023] MLJU 1273

[128] Autokit also claims the sum of RM6,800.00 per month for the rental of the warehouse in which the Bodykits
were stored from March 2020 until HSDM takes delivery of the Bodykits from the warehouse.

[129] The invoices marked as exhibit “P3” shows that the warehouse costs incurred by Autokit for the storage of
the 270 units of the Bodykits is RM6,800.00 per month from March 2020 to April 2021 (13 months) and RM5,100.00
per month from May 2021 to date.
Decision

[130] Accordingly, for the above reasons, it is hereby ordered that HSDM pays Autokit the following sums:
(a) RM1,149,830.00 for the 270 units of the Starex Bodykits;
(b) RM88,400.00 for the storage of the 270 units of the Starex Bodykits from March 2020 to April 2021; and
(c) RM5,100 per month from May 2021 until HSDM takes delivery of the Bodykits.

[131] It is further ordered that HSDM takes delivery of the 270 units of the Starex Bodykits within 14 days from the
date of this Judgment.

[132] Interest at the rate of 5% per annum is payable by HSDM to Autokit on the sums that HSDM had been
ordered to pay the Plaintiff from the date of this Judgment until full and final settlement of the said sums.

[133] HSDM is ordered to pay Autokit costs in the sum of RM100,000.00 subject to the allocatur fee.

End of Document