Astino (Malaysia) Colour Steel Sheet Sdn. Bhd. v 1. ) Kencana Amanjaya Sdn. Bhd. (PA-11ANCC-6-04/2022)

KENCANA AMANJAYA SDN. BHD.

OH KIAN CHOK

ISMAIL BIN MAN

RUSINAH BINTI MOHAMAD (NO. K/P: 480506-10-5236) ... RESPONDEN-RESPONDEN [DALAM MAHKAMAH MAJISTRET DI JAWI DALAM NEGERI PULAU PINANG GUAMAN NO.: PE-A72NCC-20-05/2021 ANTARA Page 2 of 10 ASTINO (MALAYSIA) COLOUR STEEL SHEET SDN. BHD. (NO. SYARIKAT: 199401041558 (327245-W)) ... PLAINTIF

KENCANA AMANJAYA SDN. BHD.

OH KIAN CHOK

ISMAIL BIN MAN

RUSINAH BINTI MOHAMAD (NO. K/P: 480506-10-5236) ... DEFENDAN-DEFENDAN JUDGMENT (DISMISSING APPEAL FROM MAGISTRATES COURT—DISMISSING SUMMARY JUDGMENT APPLICATION) PRELUSION [1] The Plaintiff sues the Defendants for goods sold and delivered. [2] The 1st Defendant (D1) is the company that contracted with the Plaintiff, to supply goods to D1. Page 3 of 10 [3] The 2nd, 3rd and 4th Defendants (D2D3D4) are directors of D1. They signed a guarantee and indemnity with the Plaintiff, guaranteeing to pay the monies owed by D1 to the Plaintiff. [4] The Plaintiff filed a suit in the Magistrates Court for RM81,396.83 as the amount outstanding for the goods sold and delivered. The Plaintiff also filed an Application to enter summary judgment against the Defendants. The Magistrates Court dismissed the Summary Judgment Application. The Plaintiff appeals to the High Court. [5] Should the Plaintiff’s Appeal be allowed? In other words, should the Plaintiff’s Summary Judgment Application be allowed against the Defendants? THE BRIEF PERTINENT FACTS [6] D1 was appointed the main contractor in a development project in Kuantan, Pahang (Project). [7] D1 ordered goods (construction materials) from the Plaintiff. [8] D1 asserts that it instructed the Plaintiff to deliver the goods to the Project site by a specified date. [9] The Plaintiff asserts that it delivered the goods ordered by D1, but D1 did not fully pay for the goods. BRIEF REVIEW OF THE LAW ON ENTERING SUMMARY JUDGMENT [10] For reference, Order 14 is set out here— Order 14. Summary judgment

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. .

Judgment for plaintiff (O. 14, r. 3)

Unless on the hearing of an application under rule 1 either the Court dismisses the application or the defendant satisfies the Court with respect to the claim, or the part of a claim, to which the application relates that there is an issue or question in dispute which ought to be tried or that there ought for some other reason to be a trial of that claim or part, the Court may give such judgment for the plaintiff against that defendant on that claim or part as may be just having regard to the nature of the remedy or relief claimed [11] From case law, there are principles that I am mindful to heed. The first is the principle that when the parties assert certain facts or issues or reasons that bear on the merits of a Summary Judgment Application, I am not bound to accept those assertions just because the parties made them. I must evaluate the cogency of the assertion, and consider whether the assertion is tenable, or plausible, or reasonable: Bank Negara Malaysia v Mohd Ismail & Ors [1992] 1 MLJ 400 (SC); [1992] 1 CLJ 627. Page 5 of 10 [12] The second principle is that I must evaluate whether the facts or issues or reasons raised by the Defendant amount to a “fairly arguable defence” to the claim, such that I have a “reasonable doubt” against granting judgment summarily: Malayan Insurance (M) Sdn Bhd v Asia Hotel Sdn Bhd [1987] 2 MLJ 183 (SC); [1987] 1 CLJ 246. [13] 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; [1995] 1 CLJ 609. [14] The law on summary judgment is well established. An Application for summary judgment is defeated by the Defendants 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. [15] 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. [16] 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. Page 6 of 10 SPECIFICALLY FOR GOODS SOLD AND DELIVERED CASES [17] In an action for goods sold and delivered, “it is not sufficient for the defendant to merely deny the debt”. The Defendant must plead the “facts that negative the existence of the debt”, or “which show that the [Plaintiff’s] claim is not maintainable on other grounds” such as “the contract or order, the delivery or the amount claimed”. The defendant must satisfy the Court that “there is an issue that ought to be tried, or that there ought for some other reason to be a trial of the claim”—Hua Heng Oil Co (Em) Sdn Bhd v Tang Tiew Yong [1987] 1 MLJ 139 (HC). THE TRIABLE ISSUES RAISED BY THE DEFENDANTS [18] In my judgment, there are four triable issues that compel the dismissal of this Appeal i.e. dismissing the Summary Judgment Application. [19] First—Did the Plaintiff deliver the goods to the Project site timeously? [20] The Defendants assert that after the first two months of doing business with the Defendant, the Plaintiff’s delivery of the goods to the project site was not timely anymore. The Plaintiff’s lateness in delivering the goods jeopardized D1’s obligation to keep to the timeline for their work in the Project. [21] Simply put, the Defendants assert that the Plaintiff did not meet the terms of D1’s order for the goods. That is, the Plaintiff did not satisfy D1’s requirements. So, a trial is needed to determine the answers to this issue. [22] The Defendants may not have exhibited documentary evidence to their Affidavit In Reply to oppose the Summary Judgment Application, but Page 7 of 10 they have pleaded delay. I am of the view that the Defendants should be given the opportunity to prove their defence of the Plaintiff’s delay (which actually is the plea that the Plaintiff breached the terms of the contract between them). I find that the Defendants should be given the opportunity to prove the Plaintiff’s breach. [23] Second—Did the Plaintiff retain ownership of the goods until the goods are paid for? If yes, is D1 liable for the goods that are delivered at the Project site? [24] Clause 1 on the Plaintiff’s Delivery Orders suggests that ownership of the goods do not pass to D1 until full payment for the goods is made. And Clause 2 on the Plaintiff’s Delivery Orders provides that if the goods are not paid for in full, the Plaintiff can repossess the goods. [25] The remedy that the Plaintiff prays for in its Statement Of Claim is for the price of the goods. So, if D1 does not pay for the goods, is the Plaintiff entitled to be paid for the goods delivered, or is the Plaintiff entitled to repossess the goods? [26] In my view, a trial is needed to determine the answers to these questions too. [27] Third—Is the amount claimed accurate? [28] The Plaintiff sets out in a table at paragraph 9 of the Statement Of Claim which arrives at the RM81,396.83 sum claimed. But the Defendants refute this sum and challenge the “accuracy” and “basis” (the words used in paragraph 6 of D1 & D3’s Defence, and paragraph 6 of D2 & D4’s Defence) of that sum. Page 8 of 10 [29] In the circumstances of this case, I am of the judgment that a trial is needed to determine the basis and accuracy of the sum claimed. [30] Fourth—Are D2D3D4, as guarantors, liable to the Plaintiff for the amount claimed? [31] In the Guarantee and Indemnity that D2D3D4 signed, Clause 1 there provides that the guarantors are liable for the “certain and contingent” liabilities of D1. If D1’s liability and the amount due by D1 is triable, then the inherent and attributable liabilities of D2D3D4, as guarantors, are also triable. [32] In other words, if D1’s liability to the Plaintiff requires a trial to determine, then it follows that D2D3D4’s liabilities to the Plaintiff also need a trial to determine. [33] Put generally, the triable issues are—Is D1, as a contracting party with the Plaintiff, and D2D3D4, as guarantors, liable to P? And if yes, liable for how much? THE MAGISTRATES COURT’S DECISION [34] Analysing the Magistrate Court’s Grounds Of Judgment, I am of the view that the Magistrate is not plainly wrong. The Magistrate did not make obvious errors in its reasoning to arrive at the Decision to dismiss the Plaintiff’s Summary Judgment Application. On the contrary, the Magistrate essentially identified the triable issues that defeat the Plaintiff’s Application. Page 9 of 10 CONCLUSION [35] I find that the Defendants have raised cogent and reasonable issues. I find that the Defendants have raised a fairly arguable defence to the Plaintiff’s claim, such that I have a doubt about granting summary judgment against the Defendants. I also find that the Defendants have raised issues that should not be determined just by affidavit evidence, but instead should be determined by trial. [36] In the premises, I dismiss the Plaintiff’s Appeal with costs of RM5K to be paid by the Plaintiff to the Defendants by a specified date. Costs are subject to the allocatur. [37] The Magistrates Court’s decision to dismiss the Plaintiff’s Summary Judgment Application is affirmed. Dated: 10 February 2023 Signed KENNETH ST JAMES Judicial Commissioner High Court of Penang Page 10 of 10 Counsel/Solicitors For the Appellant: Lim Ee Theng [Messrs. Lim, Ho, Cheong & Lok (Pulau Pinang)] For the Respondents: Jagdesh Singh Johal [Messrs. Mohana Krishnan (Kuala Lumpur)] Statutes referred to:

Rules of Court 2012 – O 14 R 1 and O 14 R 3 Cases referred to:

Bank Negara Malaysia v Mohd Ismail & Ors [1992] 1 MLJ 400 (SC); [1992] 1 CLJ 627.

Malayan Insurance (M) Sdn Bhd v Asia Hotel Sdn Bhd [1987] 2 MLJ 183 (SC); [1987] 1 CLJ 246.

Ng Hee Thoong & Anor v Public Bank Bhd [1995] 1 MLJ 281 (CA); [1995] 1 AMR 622; [1995] 1 CLJ 609.

Hua Heng Oil Co (Em) Sdn Bhd v Tang Tiew Yong [1987] 1 MLJ

139.