[6] The third principle is that when I am deliberating on the facts or issues or reasons raised by the Defendant, the question that I am to determine is—are they bona fide triable issues i.e. issues that require determination by trial?—Ng Hee Thoong & Anor v Public Bank Bhd [1995] 1 MLJ 281 (CA); [1995] 1 AMR 622; [2000] 1 CLJ 503; [1995] 1 MLRA 48. [7] The law on summary judgment is well established. An Application for summary judgment is defeated by the Ds raising triable issues. In other words, the defendants need to demonstrate that a trial is required for the Plaintiff to prove its claim against the Defendants. [8] Put differently, just from an analysis of the parties’ respective Pleadings and Affidavits, as well as the documentary evidence referred to—when the Court is not persuaded to by-pass a trial to enter judgment summarily against the Defendants, then the Summary Judgment Application must fail. [9] Another way of putting it is that it must be obvious to the Court that the Defendants have no defence on the merits, before summary judgment is granted. [10] The fourth principle is that the Defendant can show cause or raise triable issues “by affidavit or otherwise”. This means that the Defendant can raise facts or issues or reasons that are outside of what he has raised in their Defence and affidavits: Noh Hyuong Seok v Perwira Affin Bank Bhd [2004] 2 MLJ 203 (CA); [2005] 3 AMR 655; [2004] 2 CLJ 64. PLAINTIFF’S CASE [11] P supplied concrete pavers to the 1st Defendant (D1). D1 is the contractor in a property development project in Batu Kawan, Penang. The 2nd Defendant (D2) is the guarantor for D1’s due payment for the concrete pavers. [12] P required D1 to provide a guarantee before P would supply and install the concrete pavers. D2 agreed to be the Guarantor and Indemnifier. [13] P’s Invoice has a term: “Any complaint regarding this Invoice will not be entertained after 10 days from the date hereof”. And P’s Delivery Order (DO) had the term: “Kindly acknowledge receipt of the goods and any irregularities should be reported within a week”. [14] All Invoices and DOs were acknowledged as received with D1’s company stamp and a personnel’s signature placed on the DOs. D1 did not make any complaint about the goods. [15] D1 had issued an unusable cheque to P. [16] D1 fended off P’s demand for full payment. D1’s excuse was that its Employer had not paid D1 and as a result, D1 could not pay P yet. But P asserts that D1’s Employer (Wee Giap Brother Construction) had fully paid D1. [17] P supplied and delivered concrete pavers to D1 from about Jan 2020 to the end of July 2020. P delivered all the goods, installed them, and completed their work in Aug 2020. DEFENDANTS’ DEFENCE [18] The goods supplied and installed were defective and not fit for purpose. The concrete pavers installed cracked and broke; the concrete paver floor sunk and caused water ponding; and wrong or odd-coloured concrete pavers were installed. Ds exhibited photographic evidence of these assertions. [19] D1 sent the goods to a laboratory for testing and found that the “kekuatan mampatan” (compressive strength) was 5.7 Mpa – 15.4 Mpa, which was way below the standard of 45 Mpa promised by P. [20] D1 paid RM80K to P, but it was paid before P’s letter of demand and not after it. [21] D1 was responsible for defects liability to the project’s Owner or the Main Contractor. D1 had to expend more than RM72,662.50 to rectify the defects that P caused. [22] D1 complained to P immediately after the concrete pavers and installation work were handed over by P. [23] There is photographic proof of the defects. [24] P admitted to the defects because P sent workers to rectify the defects. But P did not complete the rectification works. [25] P breached sections 15 and 16 of the Sale Of Goods Act 1957 because the goods failed to correspond with the description in the catalogue, and were not fit for purpose. [26] P visited the project site and represented to D1 that D1 required concrete pavers. D1 acted on P’s representation and ordered the goods. TRIABLE ISSUES [27] I find that there are triable issues that defeat P’s Summary Judgment Application. The triable issues include the following issues. [28] Whether the goods supplied by P to D1 were of merchantable quality and were fit for purpose? [29] P asserts that in their Invoices and DOs, there are terms to the effect that no complaint about the goods will be entertained after 10 days, and any irregularities should be reported within a week. Whether these terms placed by P onto the contract exempt P from the obligation to supply goods that are of merchantable quality and are fit for purpose? BALANCE OF JUSTICE [30] A fundamental ground for my decision is what I call the balance of justice. [31] Order 1A of the ROC compels me to “have regard to the overriding interest of justice”. And Order 92 Rule 4 behooves me “to prevent injustice”. [32] So I consider the balance of justice—If P’s Summary Judgment Application is not allowed, P has not lost their case. The merits of P’s case will still be canvassed, heard, and determined by the Magistrates Court, at trial. [33] When P filed this action against D1 and D2, surely P would have and should have expected to go to trial for their claim. P would know that Ds are to be given their day in Court to defend against the claim. [34] The summary judgment procedure is the exception rather than the rule in our legal system. That is why the defendant is given every opportunity to raise a triable issue or to show that there is some reason there ought to be a trial of the claim. And one triable issue is sufficient to defeat a Summary Judgment Application. [35] I have to be seriously mindful of these effects and circumstances when I weigh the balance of justice. And I am inclined to say that in the circumstances of this Appeal, it is just to disallow the entering of a summary judgment, so that both parties’ respective cases can be heard and determined at trial. Both parties should be given their day and time in court to prove their claim and defence. CONCLUSION [36] On these grounds, I allow Ds’ Appeal against the summary judgment, with costs of RM5K to be paid by P to Ds by 15.4.2024. Costs are subject to the allocatur. [37] I order that the judgment dated 5.11.2021 be set aside and the matter be reverted to the Magistrates Court for case management and disposal. Dated: 22 March 2024 KENNETH ST JAMES Judicial Commissioner Penang High Court Counsel/Solicitors: For the Appellants: Ng Joo Bun [Messrs. Ng & Teo (Pulau Pinang)] For the Respondent: Ng Zi Yang [Messrs. The Chambers of Ng & Co.) (Pulau Pinang)] Legislation referred to: