Central Cargo Sdn. Bhd. v Sb Heavy Lifting Eng (M) Sdn. Bhd. (BA-22NCVC-512-08/2017)

By Notice of Application dated 16 November 2017, the Plaintiff seeks Summary Judgment under Order 14 Rule (1) (2) of the Rules of Court 2012 (Enclosure 7) in relation to its claim in these proceedings. It claims Summary Judgment for RM1,033,412-00 plus interest, being monies allegedly due under the said Quotation Price dated 24 2 October 2016, 17 October 2016, 29 December 2016 and 10 January 2017reached between the parties, costs and other relief;

The Plaintiff’s claim is plain and obvious and the Defendant has no defence to the Plaintiff’s claim and there are not triable issues;

The cause papers for this application are as follows:

Notice of Application dated on 16 November 2017;

Plaintiff’s Affidavit in Support duly affirmed by

Defendant’s Affidavit in Reply affirmed by Shanker a/l Raman on 15 November 2017;

Plaintiff’s Affidavit in Reply duly affirmed by Vincent

Writ of Summons dated 29 August 2017

Plaintiff Statement of Claim dated 28 August 2017;

Defendant Statement of Defence dated 01

Plaintiff Reply to the Statement of Defence dated 15 November 2017.

To simplify the above affidavits, the Plaintiff is premised on the Quotation Price/ tender (sebut harga) dated 24 October 2016, 17 October 2016, 29 December 2016 and 10 January 2017 reached between the parties. The Defendant has failed to honour his obligations and had still owing the Plaintiff the outstanding sum of RM1,033,412-00 plus interest, being monies allegedly due the said 3 Quotation Price despite the Plaintiff’s having duly supplied inter alia the crane rental, crane with luffing jip, mobilisation, the demobilisation counter weight, steel plates and/ or others to the Defendant.

Having gone through the pleadings and affidavits filed by the respective parties, I have concluded the facts below :

At the Defendant’s request, the Plaintiff’s having duly supplied inter alia the crane rental, crane with luffing jip, mobilisation, the demobilisation counter weight, steel plates and/ or others to the Defendant. The details are as follows: The Supply of Crane at Gebeng, Kuantan, Pahang

The Plaintiff had sent a Quotation Price/Tender (Sebut Harga) dated 24 October 2016to the Defendant to supply one unit of 85 tonnes crane for monthly rental work in Gebeng, Kuantan, Pahang including the mobilization, crane demobilization and demobilization of counter weight and the Defendant has expressly and/ or impliedly agreed with the terms contains in the quotation when the Defendant has requested the Plaintiff to supply such crane including mobilization, crane demobilization and counter weight at the date fixed by the Defendant (such contract); 4

Later, the Plaintiff has performed his obligation under the said contract by supplying the 85 tonnes crane to Gebeng, Kuantan including the mobilization, the crane demobilization and counter weight and has issued invoices to the Defendant. The detail of such invoices are as follows: Tarikh

1.

25.11.2016

25.12.2016

25.01.2017

28.02.2017

28.3.2017

31.3.2017 CRN22809 13,071-68 385,271-18

The amount due for the contract is RM385,271-18; The Supply of Crane at Pengerang, Johore

The Plaintiff had sent a Quotation Price/Tender (Sebut Harga) dated 17 October 2016to the Defendant to supply one unit of 160tonnes crane for monthly rental work in Pengerang, Johore including the mobilization, crane demobilization and demobilization of counter weight and the Defendant 5 has expressly and/ or impliedly agreed with the terms contains in the quotation when the Defendant has requested the Plaintiff to supply such crane including mobilization, crane demobilization and counter weight at the date which has been fixed by the Defendant (second contract);

Later, the Plaintiff has performed his obligation under the second contract by supplying the 160tonnes crane for monthly rental work in Pengerang, Johore including the mobilization, the crane demobilization and counter weight and has issued invoices to the Defendant. The detail of such invoices are as follows : Tarikh

1.

19.11.2016

19.12.2016

14.01.2017

25.02.2017 CRN 22750 106,662-50 345,493-75 TOLAK Tarikh

1.

07.07.2017

30.03.2017 CN 3150 14,906-25 31,569-45 6

The amount due for the second contract is RM313,924 30; The Supply of Crane at Pasir Gudang, Johore

The Plaintiff had sent a Quotation Price/Tender (Sebut Harga) dated 29 December 2016 to the Defendant to supply one unit of 500tonnes crane with 72 cm luffing jibfor monthly rental work in Pasir Gudang, Johore including the mobilization and demobilization of counter weight, steel plates and luffing and the Defendant has expressly and/ or impliedly agreed with the terms contains in the quotation when the Defendant has requested the Plaintiff to supply such crane with 72 cm luffing jib including mobilization, demobilization counter weight, steel plates and luffing at the date which has been fixed by the Defendant (third contract);

Later, the Plaintiff has performed his obligation under the second contract by supplying the 500 tonnes crane with 72 cm luffing jibfor monthly rental work in Pasir Gudang, Johore including the mobilization, demobilization counter weight, steel plates and luffing through invoices no. CRN 22670 dated 23 January 2017 for the amount RM174,900- 00 to the Defendant; 7

On 12 April 2017, the Plaintiff has given discount to the Defendant for Invoice No. CRN 22670 amounting RM31,800-00 through Credit Note No. CN3154;

The amount due for the third contract is RM143,100-00; The Supply of Crane at Lotte Kimia, Pasir Gudang, Johore

The Plaintiff had sent a Quotation Price/Tender (Sebut Harga) dated 10 January 2017 to the Defendant to supply one unit of 500 tonnes crane with luffing jib for monthly rental work in Lotte Kimia, Pasir Gudang, Johore and the Defendant has expressly and/ or impliedly agreed with the terms contains in the quotation when the Defendant has requested the Plaintiff to supply such crane with luffing jib including mobilization, crane demobilization and counter weight at the date which has been fixed by the Defendant (fourth contract);

Later, the Plaintiff has performed his obligation under the fourth contract by supplying the 500 tonnes crane with luffing jib to Lotte Kimia, Pasir Gudang, Johore and has issued invoices to the 8 Defendant. The detail of such invoices are as follows: Tarikh

1.

03.03.2017

20.03.2017 CRN22796 159, 808-89 441,116-52

The amount due for the fourth contract is RM441,116-52;

The total amount due for all the contract as stated above is RM1,283,412-00;

As at to date, the Defendant has only paid a portion of the amount due for such contract amounting to RM250,000-00 to the Plaintiff;

From the date of filing this action, the Defendant owed the Plaintiff amounting to RM1,033,412-00 (the overdue amount);

The Plaintiff through its solicitor has send a letter of demand to the Defendant claiming the overdue amount together with interest of 1.5% monthly from November 2016 till June 2017 (which still continues). The Letter of Demand was 9 acknowledged receipt by the Defendant agent/ representative on 28 August 2017;

Upon several times requested from the Defendant for payment of the amount due to the Plaintiff, the Defendant has failed to do so. DEFENDANT’S OPPOSITION TO SUMMARY JUDGMENT

In summary, the Defendant resisted the application for Summary Judgment on the following grounds :

The Defendant’s company cop on the Delivery Orders (DO) would only refers to as acknowledge receipt of the DO’s but not the content;

The Plaintiff has supplied crane to PT Technic (M) Sdn. Bhd. and not to the Defendant;

The Defendant did not received the crane as there was no Defendant’s company cop; PRINCIPLES GOVERNING ORDER 14 APPLICATION

The principles to be applied in determining whether or not to give Summary Judgment under Order 14 Rules of court are not controversial. The Court may give Summary Judgment in a plain and obvious cases where the Defendant plainly and obviously has no defence to the Plaintiff’s claim or part of the Plaintiff’s claim. See Bank Negara Malaysia v. Mohd Ismail Ali Johor & Ors. (1992) 1 CLJ 627; (1992) 1 CLJ (Rep) 14; (1992) 1 MLJ 400, Chen Heng Ping @ Tian Seow Hock & Ors. v. Intradagang Merchant Bankers 10

(M) Berhad (1995) 3 CLJ 690; (1995) 2 MLJ 363, United Malayan Banking Corp. Bhd. v. Palm & Vegetable Oils (M) Sdn. Bhd. &Ors. (1982) CLJ 547; (1982) CLJ (Rep) 358; (1983) 1 MLJ 206, and Abdul Rahim Abdul Hamid & Ors. v. Perdana Merchant Bankers Bhd. &Ors. (2000) 2 CLJ 457; (2000) 2 MLJ 417.

It is also a settled principle that in an application for Summary Judgment, the defendant will not be given leave to defend based on mere assertions alone, in Bank Negara (supra),the Supreme Court observed: “……Under Order 14 application, the duty of a judge does not end as soon as a fact is asserted by one party, and denied or disputed by the other on affidavit. Where such assertion, denial or dispute is equivocal, or lacking in precision or is inconsistent with undisputed contemporary documents or other statements by the same deponent or is inherentlyimprobable in itself, then the Judge has a duty to reject such assertion or denial, thereby rendering the issue are not triable………….”

The standard to be applied was eloquently articulated by Laddie J in Microsoft Corporation v. Electro Wide Limited (1997) FSR 580, where he said at page 593 to 594 that : 11 “…….It is not sufficient just to look at each factual issue one by one and to consider whether it is possible that the Defendant’s story in relation to that issue is credible. The Court must look at the complete account of events put forward by both the Plaintiff and the Defendants and…….look at the whole situation. The mere fact that the Defendants support their defence by sworn evidence does not mean that the Court is obliged to suspend its critical faculties and accept that evidence as if it was probably accurate. If, having regard to inconsistency with contemporaneous documents, inherent implausibility and other compelling evidence, the defence is not credible, the court must say so. It should not let the filing of evidence which surpasses belief deprive a Plaintiff of its entitlement to relief…….”

In an application for Summary Judgment, I am also guided by the principles laid down in National Company for Foreign Trade v. Kayu Raya Sdn. Bhd. (1984) 2 CLJ 220 (FC), George Seah FJ stated that : “……We think it appropriate to remind ourselves once again that in every application under Order 14, the first considerations are (a) whether the case comes within the order and (b) whether the Plaintiff has satisfied the preliminary requirements for proceeding under Order 14. 12 For the purposes of an application under Order 14, the preliminary requirements:

The Defendant must have entered an appearance;

(ii) The statement of claim must have been served on the Defendant;

(iii) The Affidavit in Support of the application must comply the requirements of Rule 2 of the Order 14 ……………………………… If the Plaintiff fails to satisfy either of these considerations, the summons may be dismissed. If however, these considerations are satisfied, the Plaintiff will have established a prima facie case and he becomes entitled to judgment. This burden then shifts to the Defendant to satisfy the Court why judgment should not be given against him……………….”

Similarly in the case of Cempaka Finance Bhd. v. Ho Lai Ying & Anor (2006) 3 CLJ 544 (FC), Steve Shim CJ (Sabah & Sarawak) in allowing the appeal has said that : “………In an application under Order 14 RHC, the burden is on the Plaintiff to establish the following conditions: (i) that the Defendant must have entered an appearance;

(ii) that the statement of claim must have been served on the Defendant; and (iii) that the Affidavit in 13 Support must comply with Rule 2 of Order 14 RHC in that it must verify the facts on which the claim is based and must state the deponent’s belief that there is no defence to the claim. Once those conditions are fulfilled, the burden then shifts to the Defendant to raise triable issues. The law on this is trite…………..” FINDING OF THIS COURT

With the above principles in mind, I turn now to consider the Defendant’s position. I have perused all the relevant Affidavit including the documents. In the Plaintiff’s Affidavit in Support and the Affidavit in Reply, I noticed that the Plaintiff’s has tabled all the documentary evidences in supplying the crane to the Defendant. Such documents are Price Quotation/ tender (sebut harga) dated 24 October 2016, 17 October 2016, 29 December 2016, invoices, the delivery orders, sales orders, credit notes as well as cheque dated 26 January 2017 and 27 March 2017. FIRST ISSUE Whether the Defendant’s agent signature and the company’s cop on the Delivery Orders merely acknowledged receipt of the DO’s and not the Content??

Based on the Defendant’s Affidavit in Reply, they deny the content of the Delivery Orders and yet has accepted the DO’s that were send to them. Nevertheless, despite merely receipt the DO’s, never at any 14 time did the Defendant had objected, complaint and request for verification from the Plaintiff as to the content of it. To my mind, the Defendant’s denial is not consistent with their act of making payment of RM250,000-00 for the amount due on the said contract. To this effect, this issue is best explained as quoted by the Plaintiff’s counsel in the case of: David Wong Hon Leong v. Noorazman Adnan (1995) 1 MLRA 708 (CA), the Court of Appeal had agreed with the decision of Edgar Joseph Jr J in Tan Cheng Hock v. Chan Thean Soo (1985) 2 MLRH 562 held that : “……In this context, we recall to mind the following passage in the judgment of Edgar Joseph Jr. J in Tan Cheng Hock v. Chan Thean Soo (1985) 2 MLRH 562;

2 MLJ 479-487 : In Wiedemann v. Walpole (1891) 2 QB 534, 537 an action for breach of promise of marriage, it was held, that the mere fact that the defendant did not answer letters written to him by the plaintiff in which she stated that he had promised to marry her, was no evidence corroborating the plaintiff’s testimony in support of such promise. Lord Esher MR, in his judgment remarked:, Here, we have only to see whether the mere fact of not answering the letters, with nothing else for us to consider is any evidence in corroboration of the promise. (emphasis added). Earlier, in his judgment, he said, “Now there are cases – business and mercantile cases in which the Courts have taken notice that, in the ordinary course 15 of business, if one man of businessstates in the letter ta another that he has agreed to do certain things, the person who receives that letter must answer it if he means to dispute the fact that he did so agree………” SECOND ISSUE Whether the Plaintiff has actually supplied Crane to Defendant despite the DO to PT Technic (M) Sdn. Bhd. and had acknowledge herewith?? - Defendant has actually received the supply Crane by Plaintiff??

It is to be noted that the Plaintiff has supplied such Crane to PT Technic on the instruction and/or at the request of Defendant as PT Technic was his client. The Plaintiff has reissued the new Delivery Order No. 95254 and 95255 (Ex. CK2) to replace the previous DO that was address to PT Technic so as to confirm that the Crane was supplied to the Defendant. Having compare the previous DO No. 94161 and DO No. 94162, it bears the same content where the same Crane was supplied from 26 November 2016 and 25 December 2016 and also from 26 December 2016 and 25 January 2017. On the other hand the DO No. 94165 which was addressed to the Defendant and have received by PT Technic because the Representatives of the Defendant was not at the site which was duly confirmed by the Defendant. Similarly the new DO No. 95464 that was issued to the Defendant and received by and/or signed by the Defendant’s representative and cop by the Defendant’s company. The DO No. 16 95464 and DO No. 94164 bears the same supply of Crane 85 tonnes to the Defendant. Ultimately the new DO No. 95465 that was issued to replace the DO No. 94931 till 94943 bears the same supply of Crane 500 tonnes. Having said so, it is clear to my mind that by having reissue the new Delivery Order to replace the previous DO, which bears the same contents, the Plaintiff has actually supply Crane to the Defendant. The new Delivery Order was acknowledge receipt by the Defendant and/or signed on their behalf by using the Defendant company’s cop. As such the Defendant’ has actually received such Crane without more! THIRD ISSUE Has the Plaintiff prove the content of the Invoices??

The Defendant in his Affidavit in Reply alleged that the Plaintiff needs to prove this issue. In the Plaintiff’s Affidavit in Reply, it is clear that the Plaintiff has attached and endorsed the following in his Affidavit namely;

The Quotation Price/ Tender (Sebut Harga) dated 24 October 2016 (ex. CK1), 17 October 2016 (ex. CK3), 29 December 2016 (ex. CK8) and 10 January 2017 (ex.CK10);

Invoices, Delivery Orders, Sales Order and Work Sheet from November 2016 till January 2017 and from February till March 2017 for the supply of Crane at Gebeng, Kuantan, Pahang (ex. CK2, CK14, CK15 and CK16); 17

Invoices, Delivery Orders, Credit Notes dated 21 March 2017 and 30 March 2017 and contra voucher dated 7 July 2017 for the supply of Crane at Pengerang, Johore (ex. CK4, CK5, CK6 and CK7);

Invoices, Credit Notes dated 12 April 2017 and Delivery Orders for the supply of Crane at Pasir Gudang, Johore (ex. CK9 and CK17);

Invoices, Sales and Delivery Orders for the supply of Crane at Lote Kimia, Pasir Gudang, Johore (ex.

Cheque Deposits Slip dated 26 January 2017 and 27 March 2017 (CK12) Having submitted all the relevant documents as above, to my mind the Plaintiff has actually prove its contents. Neither had the Defendant proves otherwise. Having clearly proves in the Plaintiff’s case, it is important for the Defendant to plead the inexistence of such amount due and not merely denial as reflected in the case of : Chong Chow Fong v. Ban Tuck (M) Sdn. Bhd. (1983) 1 MLRH 86, the Court held that : “…….the record provided shows that the defence filed merely denied that the sum claimed or any part thereof was owing by the appellant to the respondent who was put to strict proof. Such a defence is bad in law because in an action for golds sold and delivered the defendant must not merely plead a denial of the debt 18 but must plead any facts which negative its existence or show that the action is unsustainable on other grounds for example, the order or contract, the delivery of the amount claimed. Indeed, if a defendant by his Statement of Defence simply “put the plaintiff to proof of the several allegations in their statement of claim” the defendant will be taken as admitting the claims alleged in the Statement of Claim and the plaintiff would be entitled to judgment without adducing any evidence in support of his case…….. CONCLUSION In the light of the foregoing and in the upshot, after hearing the submission by both parties, the points made by the Defendant in its Affidavit has no substance or afford it a defence or constitute a triable issue. Accordingly, I allow the Plaintiff’s application for Summary Judgment and costs of RM5,000 to the Plaintiff. Dated 22 January 2018. (DATO’ HJ. MOHAMAD SHARIFF BIN HJ. ABU SAMAH) Judicial Commissioner (NCVC 6) High Court of Malaya Shah Alam, Selangor Darul Ehsan 19 Counsel For the Plaintiff : Miss Elaina Teng mob Defendant (Messrs. Seah Balan Ravi & Co.) For the Defendant : …………-………………….. (Messrs. A.G. Roseli & Paul)