Dataprep Malaysia Sdn Berhad v Newtec Engineering (M) Sdn Bhd (WA-12ANCC-2-01/2024)

The Appellant was the Defendant in the Court below while the Respondent was the Plaintiff. Parties will be referred to as they were in the Court below.

The Plaintiff’s claim is for the balance amount owing for goods ordered by the Defendant from the Plaintiff.

The Sessions Court granted summary judgment against the Defendant.

The Defendant appealed to the High Court against the Judgment of the Sessions Court.

The Defendant had placed an order for Viral Transportation Media (VTM) (“the Goods”) from the Plaintiff. The cost for the Goods is

The order for the Goods was made via the Defendant’s Purchase Order dated 25 January 2022 (“the PO”).

The PO contains the terms of payments. It says that 50% of the payment is made upon placement of the order and the balance 50% to be made upon delivery of the Goods.

There was a similar transaction in the past where the Defendant placed an order for the Goods and payment was on the same terms; that is, 50% of payment is to be made upon issuance of the order and the balance 50% before delivery. Both payments were made timeously by the Defendant.

The Defendant, for the present claim, made payment of RM 270,000.00, being 50% of the payment due, upon placing the order.

The Defendant did not make the balance payment.

The Plaintiff issued a Notice of Demand dated 2 June 2022 demanding payment from the Defendant. The Defendant did not reply to this Notice of Demand.

The Plaintiff’s claim is for the balance payment for RM 270,000.00 as well as interests and costs.

The Plaintiff then filed a writ and took out a notice seeking summary judgment against the Defendant. The Learned Sessions Court Judge granted the application.

The Defendant submits that the Defendant has not sought delivery of the Goods. Essentially, although the Defendant has ordered the Goods, the Defendant says the obligation to pay only arises once a request has been made for delivery of the Goods.

Learned Counsel for the Defendant submits, from the Bar, that payment of the balance purchase is indication that delivery can be affected and the place for delivery will also be indicated in the email sent by Defendant to the Plaintiff. This, Learned Counsel contends, is the meaning to be ascribed to the term “50% balance before delivery” as it appears on the PO. As no delivery has been sought, the Defendant allegedly is not obliged to make payment for the RM 270,000.00 sought by the Plaintiff.

Learned Counsel also submits that the Plaintiff has failed to mitigate its losses.

I re-heard the matter afresh as mandated by Order 55 Rule 2 of the Rules of Court 2012.

The Court’s jurisdiction to grant summary judgment is governed by Order 14 of the Rules of Court 2012.

Once the Plaintiff fulfils the procedural requirements of Order 14 Rule 2(1) of the Rules of Court 2012, the burden shifts to the Defendant to raise at least one triable issue to justify the Court granting the Defendant leave to defend. See: South East Asia Insurance Bhd v. Kerajaan Malaysia [1998] 1 CLJ 1045, CA.

In the present appeal, it is not disputed that the Plaintiff has fulfilled the procedural requirements of Order 14 Rule 2(1) of the Rules of Court 2012.

The burden then shifts to the Defendant to raise at least one triable issue. See: Bank Negara Malaysia v. Mohd Ismail & Ors. [1992] 1 CLJ 14 (Rep).

The Defendant does not deny that the Defendant issued the PO and that the Goods have been ordered by the Plaintiff based on the PO.

The Defendant also does not deny that the Defendant has placed a similar order on similar terms on a previous occasion with the Plaintiff and has made timeous payments to the Plaintiff in respect of those Goods.

The Plaintiff has purchased the Goods from a third-party supplier upon receipt of the first 50% payment from the Defendant. On 3 March 2022, the Plaintiff informed the Defendant that the Goods will reach the Plaintiff’s warehouse on 12 March 2022 and the Plaintiff will arrange for delivery of the Goods upon receipt of the balance payment from the Defendant.

The Plaintiff had issued 3 reminders to the Defendant via emails dated 27 March 2022, 5 April 2022, and 18 May 2022 seeking payment of the balance purchase price so that delivery of the Goods to the Defendant can be effected. In none of those emails did the Plaintiff ask for the Defendant’s instructions if the Goods may be delivered. Neither is there evidence that the Defendant has informed the Plaintiff that payment will only be effected when the Defendant issues a request for the delivery of the Goods.

Even upon receipt of the Notice of Demand from the Plaintiff, the Defendant did not deem fit to reply denying the obligation to make payment for reasons the Defendant is raising in this appeal.

Given the factual circumstances surrounding the business transaction between the parties, one would have expected the Defendant to immediately dispute the request made by the Plaintiff for delivery of the Goods and payment due upon them. Yet the Defendant did nothing except to let matters be.

In such a situation, the following passage in the judgment of Edgar Joser Jr. J. in Tan Cheng Hock v. Chan Thean Soo [1987] 2 MLJ 479 (at page 487) bears repeating: “In Wiedemann v. Walpole [1891] 2 Q.B. 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 M.R., 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.” 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 of business, if one man of business states in a letter to 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.” (The emphasis is mine)

The Defendant’s deafening silence all along and raising issues only when the claim was filed speaks volumes of the credibility of such a defence.

In any event, I do not agree that the Defendant’s understanding of the term “50% balance before delivery” means delivery is to be effected ONLY when the Defendant issues a request for delivery or payment for the same. Such an interpretation is absurd as having ordered the Goods and having made the initial payment, the Defendant is not entitled to keep silent for an inordinate amount of time while the Goods languish in the Plaintiff’s warehouse.

In fact, even until the claim was filed at the Sessions Court in November 2022 (the Goods were ordered in January 2022), the Defendant has yet to make the request for delivery. As mentioned earlier, no proof of “requests” in the past for delivery of goods on similar terms has been exhibited by the Defendant to justify his understanding of the terms as he expects this Court to believe.

As for mitigation of damages, Learned Counsel has admitted that this was not pleaded. I disregarded this unpleaded Defence.

I find that the Defendant has failed to raise a triable issue that warrants a trial of the action. The Defendant’s defence is neither plausible nor meritorious warranting a trial.

I find that on the facts of this case, the Sessions Court was entirely correct in granting the summary judgment.

In the premises, I dismissed the appeal by the Defendant and affirmed the orders of the Sessions Court. I also granted costs of the appeal to the Plaintiff. Dated the 6th day of November 2025 ……………………………………………………………………… MUHAMMAD ADAM @ EDWARD BIN ABDULLAH Judicial Commissioner High Court (Commercial Division NCC 4) High Court of Kuala Lumpur In the Federal Territory, Malaysia Counsel for the Appellant : Mohammed Hissham bin Ramdzan together with Amar Ajwad Kalki bin Muhammad Azali Kalki Messrs. Abdul Malik Zamri & Co. Counsel for the Respondent : Haryati binti Kasran

South East Asia Insurance Bhd v. Kerajaan Malaysia [1998] 1 CLJ

Bank Negara Malaysia v. Mohd Ismail & Ors. [1992] 1 CLJ 14 (Rep)

Tan Cheng Hock v. Chan Thean Soo [1987] 2 MLJ 479

Order 14; Order 14 Rule 2(1) and Order 55 Rule 2 of the Rules of