DataFM Sdn Bhd v Shaziman Transport Sdn Bhd

Appellant(s): Datafm Sdn Bhd

Respondent(s): Shaziman Transport Sdn Bhd

• YA Dato' Faizah Binti Jamaludin
• YA Datuk Dr Shahnaz Binti Sulaiman
• YA Tuan Dean Wayne Daly

• Under a five-year agreement, a GPS/OTC equipment supplier undertook not only to install hardware on the client's petroleum-transport vehicles but also to monitor, process and analyse OTC data and furnish prescribed daily, weekly and monthly reports.
• The client alleged that despite paying OTC rentals and operating charges, the supplier never furnished the stipulated OTC reports, while the supplier contended the Fleet Downloading Station (FDS) was a separate, optional chargeable item and that the client's drivers failed to download the data.
• Following a nine-day trial, the High Court found the supplier in breach of contract, ordered repayment of OTC rentals, directed assessment of operating charges and manual-report employee costs, and allowed only a small portion of the supplier's counterclaim (dismantling charges); the supplier appealed the entire decision.

• Whether the trial court erred in finding a breach of the contractual OTC reporting obligations, including whether the supplier could rely at trial on unpleaded defences (that a CPU or shared FDS could have been used, or that the client's drivers were at fault) not raised in its pleaded defence.
• Whether a without-prejudice-style meeting between the parties' representatives, and the client's continued payment and non-termination of the contract, gave rise to an admission of performance, estoppel, waiver, or an inconsistent election (approbation and reprobation) barring the client's claims.
• Whether the High Court correctly ordered repayment of OTC rentals and directed assessment (rather than final quantification) of the operating charges and manual-reporting employee costs, and whether it correctly determined the supplier's counterclaim, including the construction of a "per truck" dismantling charge clause.

• The Court of Appeal held that the supplier's obligation to furnish OTC reports was independent of any obligation to install the FDS, and that the supplier's alternative explanations (CPU, shared FDS, driver default) constituted an impermissible departure from its pleaded defence and were, in any event, evidentially insufficient to prove performance or excuse non-performance.
• The Court found that the meeting and subsequent conduct did not amount to an admission of performance, waiver, settlement or a true election inconsistent with the client's claims; contemporaneous correspondence showed the client maintained its objection to missing reports even while making payment, so neither estoppel nor approbation/reprobation applied.
• The Court affirmed the repayment of OTC rentals, upheld the directions to assess the recoverable portion of the operating charges and employee costs (subject to proof of measurable loss and avoidance of double recovery), affirmed the modest award on the counterclaim (including the correct "per truck" construction of the dismantling fee clause), and dismissed the appeal in its entirety with costs to the respondent.