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1 IN THE HIGH COURT OF MALAYA AT KUALA LUMPUR IN THE FEDERAL TERRITORY, MALAYSIA (COMMERCIAL DIVISION) SUIT NO.: WA-22NCC-632-09/2024
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WA-22NCC-632-09/2024
High Court of Malaysia12 Dec 2024
The written judgment as the court issued it, with the coram, case number, and source links. Every paragraph has its own anchor.
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1 IN THE HIGH COURT OF MALAYA AT KUALA LUMPUR IN THE FEDERAL TERRITORY, MALAYSIA (COMMERCIAL DIVISION) SUIT NO.: WA-22NCC-632-09/2024
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BLJ COMMERCIALS PTE LTD [Business Registration No.: 201700079R]
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CHEN BOON LEONG [Identity Card No.: 670512016165] … PLAINTIFFS
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SUNTRUCK SDN BHD [Business Registration No.: 1073367-W]
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CHEN BOON KOH [Identity Card No.: 620809015467]
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CHEN BOON KENG [Identity Card No.: 650903016375] …DEFENDANTS JUDGMENT Introduction [1] Enclosure 5 is the Plaintiffs’ Notice of Application for summary judgment under Order 14 rule 1 of the Rules of Court 2012 (“the ROC 2012”). After hearing oral submissions from counsel, I found no triable issues and granted summary judgment. Background Facts The Trucks Sale [2] Between 2021 to 2023, the 1st Plaintiff supplied 23 units of trucks to the 1st Defendant (the “Trucks”). For the trucks delivered, the 1st Plaintiff issued 23 invoices to the 1st Defendant dated between 22.06.2021 and 30.03.2023 (the “Invoices”) totaling GBP357,250.00. The particulars of the Invoices are set out below: Invoice Date Invoice No. Amount (GBP) Delivery Date 22.06.2021 1720271 32,500 13.08.2021 23.07.2021 1720280 17,000 19.08.2021 20.08.2021 1720285 17,000 07.11.2021 18.10.2021 1720293 16,500 06.10.2021 08.02.2022 1720294 13,500 08.02.2022 09.02.2022 1720295 13,500 08.02.2022 09.03.2022 1720296 17,000 08.02.2022 18.03.2022 1720297 16,500 08.02.2022 18.04.2022 1720298 13,500 08.03.2022 25.04.2022 1720299 10,500 08.03.2022 08.06.2022 1720300 14,500 09.03.2022 09.06.2022 1720301 12,250 09.03.2022
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13.06.2022 1720302 16,000 02.04.2022 15.06.2022 1720303 15,000 02.04.2022 26.06.2022 1720304 12,500 04.04.2022 27.06.2022 1720305 14,000 04.04.2022 05.07.2022 1720306 16,250 12.06.2022 10.07.2022 1720307 11,000 12.06.2022 18.08.2022 1720308 15,000 10.06.2022 30.08.2022 1720309 12,500 10.06.2022 12.09.2022 1720310 16,750 28.12.2022 08.12.2022 1720317 20,500 01.06.2023 30.03.2023 1720318 13,500 31.05.2023 Outstanding Sum 357,250.00 [3] None of the Invoices were paid by the 1st Defendant and as such, there is at present, a debt due from the 1st Defendant to the 1st Plaintiff in the sum of GBP357,250.00 (the “Outstanding Sum”). The Promissory Notes Issued by the 2nd and 3rd Defendants [4] Following from the 1st Defendant’s failure to pay the 1st Plaintiff, GBP357,250.00 for the Invoices, on 15.04.2024, the 2nd and 3rd Defendants issued two Promissory Notes (the “Promissory Notes”) respectively to the Plaintiffs wherein the 2nd and 3rd Defendants: a) declared that the 1st Defendant owes more than RM2 million (this is said to be equivalent to approximately GBP357,250.00 due under the Invoices) to the Plaintiffs; b) promised to repay the Outstanding Sum or all outstanding debts to the 1st Plaintiff within 6 months from the date of the Promissory Notes; c) declared that the 2nd and 3rd Defendants shall stand as guarantors for the Outstanding Sum or all outstanding debts whereby, should the 1st Defendant be unable to satisfy the Outstanding Sum or if the 1st Defendant becomes insolvent, the 2nd and 3rd Defendants shall repay the Outstanding Sum or all outstanding debts on behalf of the 1st Defendant; d) pledged the 2nd and 3rd Defendant’s properties at No. 6, Jalan U17/18D, Amverton Hills, Seksyen U17, 41160 Shah Alam, Selangor (“2nd Defendant’s Property”) and No. 11, Jalan U17/18D, Amverton Hills, Seksyen U17, 41160 Shah Alam, Selangor (“3rd Defendant’s Property”) respectively as security and collateral for the Outstanding Sum or all outstanding debts; and e) undertook to repay the Outstanding Sum from the proceeds of sale of the 2nd Defendant’s Property and the 3rd Defendant’s Property respectively within 4 months or by 31.12.2024 if the Defendants fail to repay the Outstanding Sum within 6 months from the date of the Promissory Notes, failing which, the Plaintiffs shall have full rights to the properties to recover the Outstanding Sum or all outstanding debts. [5] At the time the 2nd and 3rd Defendants issued the Promissory Notes, the Defendants also issued a post-dated cheque dated 15.05.2024 (the “Post-Dated Cheque”) to the name of the 2nd Plaintiff for the sum of RM500,000.00 as part payment for the Outstanding Sum under the Promissory Notes and the Invoices. However, the cheque was dishonoured when the 2nd Plaintiff attempted to cash in the same. [6] The Defendants still did not make payment towards the Outstanding Sum after the Plaintiffs’ solicitors issued notices of demand dated 29.05.2024 and 08.07.2024 to the Defendants (the “Notices of Demand”). Triable Issues A) The 2nd and 3rd Defendants Signed the Promissory Notes under Duress [7] The 2nd and 3rd Defendants claimed that the Promissory Notes were signed under pressure and duress. However, there is no credible evidence to substantiate this contention at all. The Promissory Notes was signed on 15.04.2024 and yet prior to the filing of this Summary Judgment Application, such allegation was never made. This in itself shows that the allegation is an afterthought. [8] The Defendants do no dispute that they had issued the Post-Dated Cheque as part payment of the Outstanding Sum pursuant to the Promissory Notes. If indeed, the Promissory Note was procured under duress, one would not expect the Defendants to issue the Post-Dated Cheque. B) The Plaintiffs Did Not Send the Statement of Account to the Defendants [9] The Defendants contended that a Statement of Account is necessary to prove the indebtedness of the Defendants to the Plaintiffs. The contention is without basis. The indebtedness of the Defendants to the Plaintiffs are established by: a) the supply of the Trucks by the 1st Plaintiff to the 1st Defendant as evidenced by the Bills of Lading and the Consignment Notes showing the deliveries of the Trucks. In this regard, the Defendants had resold the Trucks to their customers; b)
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pursuant to the deliveries of the Truck, the 1st Plaintiff had issued the Invoices; c) the Promissory Notes signed by the 2nd and 3rd Defendants also had acknowledged the Outstanding Sum; d) the issuance of the Post-Dated Cheque by the Defendants as part payment of the Outstanding Sum again is an admission of the indebtedness. [10] In any event, this argument is moot considering that the 1st Plaintiff did issue to the Defendants, the Statement of Account dated 31.12.2023 by way of an email dated 6.7.2024. C) The Defendants have a Claim based on Fraud against the Plaintiffs in Suit WA-22NCC-633-09/2024 (the “Suit 633”) [11] Suit 633 was filed after the Plaintiffs took steps to take legal action against the Defendants for the Outstanding Sum. In Suit 633, the Defendants claim of fraud being perpetrated by the Plaintiffs. However, the claim based on fraud has nothing to do with the Plaintiffs’ claim in this Suit save for a reference to 4 the Invoices, namely, (a) invoices nos. 1720298 and 1720299 and (b) invoices nos. 1720302 and 1720306. [12] According to the Defendants the invoices above were duplication of the same units of trucks delivered. In other words, there were only 2 trucks delivered in respect of the 4 invoices instead of 4 different trucks. [13] However, the Plaintiffs have satisfactorily clarified that there were typographical errors on the chassis numbers and engine numbers in the following 2 invoices: i) invoice no. 1720298 accurately referred to the chassis no. YV2JS02C88B531989 and the engine no. D13170584. However, invoice no. 1720299 had wrongly referred to the same chassis no. YV2JS02C88B531989 and the engine no. D13170584 in invoice no. 1720298 when the correct chassis number ought to be YV2J4CMA75B383093 and the correct engine number ought to be D12447796D1A; ii) invoice no. 1720302 accurately referred to the chassis number YV2AG20AXCB624357 and the engine number D13341926. However, invoice no. 1720306 had wrongly referred to the same chassis number YV2AG20AXCB624357 and the engine no. D13341926 in invoice no. 1720302 when the correct chassis number ought to be YV2AG30C0DA740715 and the correct engine number ought to be D13380611. [14] Each of the Invoices reflects an individual unit of truck. In other words, each invoice refers to the sale of one truck and accordingly for the 23 invoices issued, there were 23 units of trucks sold and delivered to the Defendants. [15] In fact, the Defendants were aware of the errors above and had acknowledged that they received all 23 units of the Trucks – there were no duplicate invoices. This can be established by: a) the Bills of Lading for each of the 23 units of the Trucks showing that the 23 units of trucks were delivered to the Defendants (the consignees named in the Bills of Lading were the approved permit holders acting for the Defendants); b) the invoices issued by North Norfolk Vehicle Solutions Ltd. who was exporter / shipper appointed by the 1st Plaintiff evidencing the shipments of the 23 units of the Trucks to the Defendants; c) the Customer Report of the 1st Plaintiff containing details of the invoice numbers, vehicle make, chassis numbers, invoice value, shipping container numbers, consignment notes / delivery orders and container delivery dates for all 23 units of the Truck. The Customer Report is an internal document prepared by the 1st Plaintiff for record keeping purposes; and d) the Consignment Notes issued by forwarding agents of the Defendants for 22 units of the Trucks showing the container numbers under which the 22 units of the Trucks were delivered to the Defendants. These Consignment Notes are documents in the possession of the Defendants and were provided to the Plaintiffs by the agents of the Defendants (Edaran Pekemas Berhad and Changli Welding Works Sdn Bhd). The remaining single consignment note for 1 unit of the Trucks under invoice no. 1720310 was not provided to the Plaintiffs by Edaran Pekemas Berhad or Changli Welding Works Sdn Bhd because the Defendants used a different agent for the truck under this invoice. [16] Based on the above contemporaneous documentary evidence, it is clear that the 1st Plaintiff had indeed supplied the 1st Defendant with 23 units of the Trucks and there was no duplication whatsoever. Neither was there any fraud. [17] As for the other claims of fraud in the Suit 633, the claims of fraud do not cover the Invoices in this suit. As such, the filing of the Suit 633 suit does not disentitle Plaintiffs from obtaining a summary judgment in this suit. D) Defective trucks [18] The Defendants also raised a complaint regarding unsatisfactory quality issues with the Trucks delivered and the Plaintiffs’ failure to honour the warranties on the defective Trucks. [19] However, apart from bare averments made in the affidavits, the Defendants were not able to support their complaints with any contemporaneous documents at all. It is incredulous that not a shred of contemporaneous communication exists if as contended by the Defendants these ‘defects’ and quality issues had resulted in significant financial losses to them. [20] If the above allegation is inconsistent with the Defendants’ conduct in retaining the Trucks (which they alleged were defective) and thereafter selling the same to their customers. Conclusion [21] For the above reasons, this Court has no hesitation in granting the Plaintiffs an order in terms of the Summary Judgment Application. Dated the 27th day of December 2024 ONG CHEE KWAN Judge of the High Court of Malaya High Court of Kuala Lumpur, NCC2 & Admiralty Counsel:
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Mr. John Rolan Fernandez for Plaintiff
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Ms. Radhia Syahira for Defendant
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Order 14 rule 1 of the Rules of Court 2012
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