1. ) Builtamont International Sdn. Bhd. v Zahilah Binti Abdul Wahab (WA-22NCvC-14-01/2025)

The Plaintiff applied for summary judgment against the Defendant under Order 14 of the Rules of Court 2012 (“the Rules”) whereas the Defendant applied to strike out the Plaintiff’s claim under order 18 Rule 19 of the Rules.

Both these provisions are reproduced here for ease of reference: 03/06/2025 11:42:29

Application by Plaintiff for summary judgment (O. 14 r. 1)

Where in an action to which this rule applies a statement of claim has been served on a defendant and that defendant has entered an appearance in the action, the plaintiff may, on the ground that the defendant has no defence to a claim included in the writ, or to a particular part of such a claim, or has no defence to such a claim or part thereof except as to the amount of any damages claimed, apply to the Court for judgment against that defendant.

Striking out pleadings and endorsements (O. 18 r. 19)

The Court may at any stage of the proceedings order to be struck out or amended any pleading or the endorsement, of any writ in the action, or anything in any pleading or in the endorsement, on the ground that-

it discloses no reasonable cause of action or defence, as the case may be;

it is scandalous, frivolous or vexatious;

it may prejudice, embarrass or delay the fair trial of the action; or

it is otherwise an abuse of the process of the Court, and may order the action to be stayed or dismissed or judgment to be entered accordingly, as the case may be.

No evidence shall be admissible on an application under subparagraph (1)(a).

This rule shall, as far as applicable, apply to an originating summons as if it were a pleading. Brief facts

The fact as pleaded by the Plaintiffs showed that the 2nd Plaintiff had filed a suit against the Defendant’s husband Chairul Anhar an Indonesian National resulting the 2nd Plaintiff obtaining a High Court judgement against the said Chairul Anhar.

On appeal to the Court of Appeal both parties agreed to a consent judgement whereby the said sums of money owed to the Plaintiffs was to be paidin 4 instalments beginning from 7/6/2018 and ending on 28/8/2019.

However, Chairul Anhar failed to pay the entire sum as agreed and was declared bankrupt on 10/9/2019 on the application of the 2nd Plaintiff.

On 3/5/2024 the 2nd Plaintiff was appointed CEO of the 1st Plaintiff and representing the 1st Plaintiff had met with the Defendant and Chairul Anhar and on representation made by both of them on a business project loaned the Defendant a sum of RM 1 million,

The Defendant executed a friendly loan agreement for the repayment of the RM1 million. The Defendant also signed an undertaking to repay the sum of money owed by Chairul Anhar to the Plaintiff.

The Defendant did not honour either of the agreements and hence this claim by the Plaintiff.

In paragraph 12 of the Statement of Defense admits to owing the sum of RM1 million to the Plaintiff where the Defendant states that “Setakat kepada suatu tuntutan terhadap pnijman wang berjumlah RM1,000,000 Defendan menafikan peranggan-perrangan di keseluruhan perenggan-perenggan 14 hingga 19 penaytaan tuntutan dan meletakkan beban pembuktian yang ketat keatas plaintif-plaintif”

On the undertaking to pay the sum owed by Chairul Anhar the Defendant contends that the agreement is void as it seeks to circumvent the fact that the Chairul Anhar is a bankrupt and therefore has no capacity to enter any undertaking to pay the agreed sum owed.

The Defendant further contends that the undertaking to the payment of the sum owed by Chairul Anhar has been adjudicated with finality and cannot be re litigated under the principle of “Res Judicata”.

The pre-condition/considerations of applying for summary judgment under order 14 of the Rules is that the Plaintiff has served a Statement of Claim to the Defendant and the Defendant has entered appearance. This has been done in this case.

The Plaintiff has also filed an affidavit affirming the facts of the Claim including the execution by the Defendant of the 2 agreements. In fact the Defendant has admitted to executing both the agreements.

Once this pre-condition/considerations have been fulfilled then the “burden shifts to the defendant to satisfy the Court why judgment should not be given against him” (National Company for foreign trade V Kayu Ara Sdn Bhd [1984] MLJ 300).

As the Defendant has already admitted to owing the sum of RM1 million to the Plaintiff the Defendant has no plausible defense against this claim of RM1 million.

On the undertaking being void for illegality the law the Court looked the Contracts Act 1950. Section 11 specifies who is competent to contract in the following words: Every person is competent to contract who is of the age of majority according to the law to which he is subject, and who is of sound mind, and is not disqualified from contracting by any law to which he is subject.

The Defendant has not alluded to any facts that shows that she is not competent to enter the agreement with the Plaintiff. Neither has the Defendant alluded that there was any mistake either of fact or law in executing the agreement undertaking to pay the sum owed by Chairul Anhar. In fact, the Defendant was fully aware of the bankrupt status of Chairul Anhar.

The Defendant is relying on section 24 of the Contracts Act 1950 to contend the agreement to repay is void for illegality. For ease of reference this provision is reproduced here: The consideration or object of an agreement is lawful, unless-

it is forbidden by a law;

it is of such a nature that, if permitted, it would defeat any law;

it is fraudulent;

it involves or implies injury to the person or property of another; or

the court regards it as immoral, or opposed to public policy. In each of the above cases, the consideration or object of an agreement is said to be unlawful. Every agreement of which the object or consideration is unlawful is void. ILLUSTRATIONS

The Court however looked at section 42 of the Contracts Act which stipulates that: When a promisee accepts performance of the promise from a third person, he cannot afterwards enforce it against the promisor.

It is clear that the law allows the Plaintiff in this case to accept performance of the consent order from the Defendant who is the third person. Therefore, there is no illegality of the object or consideration in the letter of undertaking signed by the Defendant.

The Defendant’s defense of illegality and Res Judicata is misconceived and does not amount to a defense to the Plaintiff’s claim neither does it amount to a factor to strikeout the Plaintiff’s claim under Order 18 Rule 19 of the Rules.

In the upshot the Court allowed the Plaintiff’s claim for summary judgement against the Defendant with a cost of RM5,000 and dismissed the Defendant’s application to strike out the Plaintiff’s claim with a cost of RM3,000. Dated: 29.5.2025 sgd DATO’ HAJI AKHTAR BIN TAHIR Judge High Court of Malaya, Kuala Lumpur PARTIES For the Plaintiff: Nama Peguamcara: Jasreezal Amar Tetuan Abu Talib Shahrom 39-43, Jalan Desa, Taman Desa, Off Jalan Kelang Lama, 58100 Kuala Lumpur. For the Defendant: Nama Peguamcara: Hairulallias / Suria Putra Tetuan Putra Taulan & Faiq Azizan No. 63A-1, Jalan Warisan Sentral 2, KIP Sentral, Kota Warisan, 43900 Sepang, Selangor.