CASE:
WEE LIAN CONSTRUCTION SDN BHD V INGERSOLL - JATI MALAYSIA SDN BHD [2005] 1 MLJ 162
FACTS:
The plaintiff and the defendant had entered into an agreement (‘the agreement’) for the sale of a used machine, an Ingersoll-Rand CM 351 Crawlair Drill fitted with a VL140 Drifter (‘the machine’) at a price of RM130,000 subject to the terms and conditions contained in the purchase order. The machine was inspected and accepted by the plaintiff without objection. The plaintiff did not elect to engage their own independent technical advisers for a second opinion on the machine despite being accorded the opportunity to do so by the defendants. It was stated that the machine was fitted with a VL140 drifter prior to delivery to the plaintiff. The agreed warranty period was for six months and no complaint was raised during that time. After the expiry of the six months’ warranty period, the defendant continued to provide goods, after-sales service and repairs on the used machine, as and when requested by the plaintiff. 22 months later, the plaintiff complained that the machine was fitted with a VL120 drifter and not VL140, and refused to settle there pair costs.











HELD:
In determining the difference between a VL120 Drifter and a VL140 Drifter an application of the‘finger test’ or ‘visual test’ would have easily revealed the differences. The difference between both types of drifters also could have been easily verifiable upon the plaintiff obtaining a second opinion. The plaintiff elected not to do despite the defendant’s advice. Further, the plaintiff had sufficient time to see if the Drifter was VL120 or a VL140 but had chosen to complain after using the said machine for 22 months. Accordingly, there was no breach of s 15 of the SOGA as claimed by the plaintiff. The time and place of delivery is prima facie an important factor and, dependent upon the circumstances of each case. The plaintiff had been given the opportunity to inspect the machine even after delivery. The plaintiff’s conduct of purchasing another new drifter which had been modified to suit the machine and then sought to claim damages for non-conformity with description and alleged under-production loss, long after the expiry of the six-month warranty period was unwarranted. Therefore, once a buyer is deemed to have accepted the goods, he loses his right to reject the same for breach of conditions.