Eternal Strong Sdn Bhd v TOGL Technology Sdn Bhd (BA-22NCC-142-11/2022)

The Plaintiff's claim against the Defendant in the present suit is for the unpaid price of the chocolate products delivered, and other ancillary orders [see the Writ and Statement of Claim in Enclosures 1 and 2 respectively].

The Defendant’s defences are (a) the Defendant ordered 6,000 sets (24,000 boxes) but the Plaintiff delivered 10,000 sets (40,000 boxes) in July 2022; (b) the balance 4,000 sets delivered was allegedly excess quantity wrongly delivered, and that the Plaintiff should take back the 4,000 sets; (c) the Defendant has fully paid for the 6,000 sets (24,000 boxes) of chocolates; (d) the Defendant only discovered later that excess of 4,000 sets (16,000 boxes) were wrongly delivered and in September 2022 asked the Plaintiff to take back the excess 4,000 sets (16,000 boxes) and (e) parts of the delivered chocolates were mouldy and in December 2022 179 sets of mouldy chocolates were returned by customers. In the pleadings, the defendant also counterclaimed for alleged losses arising from defects in quality of chocolates, costs of storage, and ancillary orders [see the Defendant’s Defence and Counterclaim in Enclosure 5]. 2

By Enclosure 9 the Plaintiff applied for summary judgment for the following claims and reliefs.

RM1,203,379.70 as the unpaid balance price of the chocolates delivered but not paid; and

interest and costs. [4] In our present case, there is no argument relating to the preliminary procedural requirements having been complied with by the Plaintiff. The Defendant here argues that there are allegedly triable defences which warrant unconditional leave to defend to be given here. [5] On 12 July 2023 this Court granted summary judgment RM1,203,379.70 (as the unpaid balance price of the chocolates delivered but not paid), interest thereon and costs of application in favour of the Plaintiff. [6] Dissatisfied, the Defendant has appealed against the said decision on summary judgment. Law on summary judgment [7] In an application for summary judgment, the Defendant has to show a triable defence or some other reason for trial once the Plaintiff has complied with the preliminary procedural requirements and has shown a prima facie case for his claim. [8] In the case of Bank Negara Malaysia v Mohd Ismail & Ors [1992] 1 MLJ 400 [1992] 1 MLRA 190, [1992] 1 CLJ (Rep) 14, the Supreme Court held that:- “In an application under O 14, the court has to be satisfied on affidavit evidence that the defence has not only raised an issue, but also that the said issue is triable. The determination of whether an issue is or is not triable depends on the facts or the law arising from each case as disclosed in the affidavit evidence before the court. A complete defence need not be shown. The defence set up need only show that there is a triable issue… Under an O. 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, 3 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 inherently improbable in itself, then the Judge has a duty to reject such assertion or denial, thereby rendering the issue as not triable. In our opinion, unless this principle is adhered to, a Judge is in no position to exercise his discretion judicially under an O. 14 application. Thus, apart from identifying the issues of fact or law, the Court must go one step further and determine whether they are triable. This principle is sometimes expressed by the statement that a complete defence need not be shown. The defence set up need only show that there is a triable issue”. (emphasis added) [9] In respect of pleadings in the context of an application for summary judgment, Wong Siong Tung JC (now J.) in Malaysia Debt Ventures Berhad v Omni-Gel Sdn. Bhd. & Ors [2020] MLJU 1102; [2020] 1 LNS 1321; [2020] MLRU 849 cited the judgment by Abdul Malik Ishak J in Kiwi Brands (M) Sdn. Bhd. v. Multiview Enterprises Sdn. Bhd. [1998] 6 MLJ 38 it was held:- “[20] In general, in a summary judgment application, the plaintiff is bound by its Statement of Claim and cannot by affidavits raise matters not pleaded. However, in a summary judgment application, a defendant is not so bound by its defence and is entitled to raise any matters over and above what has been pleaded in the Statement of Defence. See: Kiwi Brands (M) Sdn. Bhd. v. Multiview Enterprises Sdn. Bhd. [1998] 6 MLJ 38.” Wong Siong Tiong JC (now J.) stated in paragraph [12] of the judgment that “It is not enough to show that the defence of a defendant has weaknesses. The court has to be convinced that a defendant has no defence worthwhile to proceed to trial. See: Pertama Malaysia Finance Berhad v. Konrep Services Sdn Bhd & 3 ors [1989] 2 MLRH 702; [1990] 1 CLJ 127 eLaw Citation: [2020] MLRHU 849.” [10] By showing any issues which ought to be tried, even if there is only one triable issue, a summary judgment should not be allowed. On this point, note the case of Malaysian International Merchant Bankers Berhad v. Datuk Mohd. Salleh & Anor [1998] 1 MLJ 257; [1998] 1 MLRH 247;[1988] 2 CLJ 90; [1988] 1 CLJ Rep 786 [11] It is trite that an application for summary judgment should be dismissed if it can be proved that there are circumstances which 4 constitute “some other reason to be a trial” as enunciated in the Federal Court case of United Merchant Finance Bhd v Majlis Agama Islam Negeri Johor [1999] 1 MLJ 657; [1999] 1 MLRA 98. In United Merchant Finance Bhd v Majlis Agama Islam Negeri Johor new evidence of criminal proceedings was discovered at the appellate stage in a civil appeal relating to the question of breach of constructive trust, the Supreme Court held that leave to defend should be given to allow the opportunity to adduce the newly discovered evidence of criminal proceedings as it constituted “some other reason to be a trial. [12] Based on the Supreme Court decision in Gunung Bayu Sdn Bhd v Syarikat Pembinaan Perlis Sdn Bhd [1987] 1 MLRA 20, [1987] 2 MLJ 332, [1987] CLJ Rep 120 it is an established principle that leave to defend must be given unless there is no real substantial question to be tried or unless there is no dispute as to facts or law which raises a reasonable doubt that Plaintiff is entitled to judgment. [13] Further, the Court of Appeal in ES HVAC Sdn Bhd v Miracle Asset Builder Sdn Bhd [2019] 3 MLJ 485, [2019] 6 MLRA 213 held that Order 14 ROC 12 jurisdiction is only to be exercised in very clear cases. The intention was not to shut out defendants from their day in court. Even if the defendant was not able to point to a specific issue which ought to be tried, but nevertheless satisfied the court that there were circumstances that ought to be investigated, then the words “there ought for some reason to be a trial” would be invoked. Analysis and conclusion on quantity of chocolates agreed and delivered [14] The Plaintiff’s action herein and the present application for summary judgment (Enclosure 9) against Defendant were for the payment of RM1,203,379.70 said to be the unpaid balance price of the chocolates delivered but not paid. [15] In paragraph 6 of the Statement of Claim (Enclosure 2), the Plaintiff pleaded the unpaid balance as total gross price of chocolates delivered (RM2,000,000.00) + demurrage and storage charge (RM3,379.70) – 6 instalment payments of RM3,000,000.00 each (RM300,000.00 x 6) = RM1,203,379.70. 5 [16] In our present case, there is no dispute that 10,000 sets of chocolates (comprising of 40,000 boxes) priced at a total of RM3,000,000 (at the unit price of RM75,000 per box) were delivered by the Plaintiff and received by the Defendant at the Defendant’s premises. [17] The Defendant’s disputes are (a) the Defendant ordered 6,000 sets (24,000 boxes) but the Plaintiff delivered 10,000 sets (40,000 boxes) in July 2022 [paragraph 3f of the Defence and Counterclaim];

the balance 4,000 sets delivered was allegedly excess quantity wrongly delivered, and that the Plaintiff should take back the 4,000 sets [paragraphs 3g and 3h of the Defence and Counterclaim]; (c) the Defendant has fully paid for the 6,000 sets (24,000 boxes) of chocolates; (d) the Defendant only discovered later that excess of 4,000 sets (16,000 boxes) were wrongly delivered and in September 2022 asked the Plaintiff to take back the excess 4,000 sets (16,000 boxes) [paragraphs 3f and 3g of the Defence and Counterclaim]; and (e) parts of the delivered chocolates were mouldy and in December 2022 179 sets of mouldy chocolates were returned by customers [paragraph 13 of the Defence and Counterclaim]. [18] The contemporaneous documents and communications between the parties’ representatives prior to the reference of the matter to solicitors are set out chronologically as follows:

20.6.2022: Invoice ESDO112480 was issued by the Plaintiff to TOGL for 4,000 boxes of 4 types of chocolates at RM75.00 per box for a total amount of RM300,000.00: see Exhibit “FC-2” to the Plaintiff’s Affidavit-in-Support, Enclosure 10 at page 18. The Invoice contains the words “Goods sold are not returnable, refundable or exchangeable within 10 working days from the date hereof”. Wechat communications between Fanny of the Plaintiff and Calvert of the Defendant (TOGL): Exhibit “FC-1” to the Plaintiff’s Affidavit-in-Support, Enclosure 10 at pages 7: “20.6.2022 19:42 Fanny : OK will check tomorrow.

20.6.2022 20:11 Fanny : Hi Calvert May I know the amount Fanny : Calvert :Today payment made ald ya Calvert : should 300k 6 Ten weeks payment

20.6.2022 20:17 Fanny : Noted thanks

27.6.2022: Invoice ESDO112482 was issued by the Plaintiff to TOGL for 4,000 boxes of 4 types of chocolates at RM75.00 per box for a total amount of RM300,000.00: see Exhibit “FC-2” to the Plaintiff’s Affidavit-in-Support, Enclosure 10 at page 20. The Invoice contains the words “Goods sold are not returnable, refundable or exchangeable within 10 working days from the date hereof”. Wechat communications between Fanny of the Plaintiff and Calvert of the Defendant (TOGL): Exhibit “FC-1” to the Plaintiff’s Affidavit-in-Support, Enclosure 10 at pages 7:

27.6.2022 11:07 Calvert : Hi fanny, the cheque also dun bank in ya. We will bank in you. Can I arrange to collect the old cheque with you? 16:36 PDF document 71KB-togl rhb 2022.06.207-01 etern…orship.pdf

30.6.2022 15:05 Fanny : You can use 3D characters PDF document 70KB-togl rhb 2022.07.04-01 etern…orship.pdf

4.7.2022: Invoice ESDO112483 was issued by the Plaintiff to TOGL for 4,000 boxes of 4 types of chocolates at RM75.00 per box for a total amount of RM300,000.00: see Exhibit “FC-2” to the Plaintiff’s Affidavit-in-Support, Enclosure 10 at page 21. The Invoice contains the words “Goods sold are not returnable, refundable or exchangeable within 10 working days from the date hereof”.

5.7.2022: Invoice No. ESDO112481 was issued by the Plaintiff to TOGL for 1 week of demurrage and storage charges from 26.6.2022 – 2.7.2022 in the gross amount of RM3,478.00, or net amount of RM3,379.70 after deducting 1 item of Lazada purchase: see Exhibit

“FC-2” to the Plaintiff’s Affidavit-in-Support, Enclosure 10 at page The Invoice contains the words “Goods sold are not returnable, refundable or exchangeable within 10 working days from the date hereof”. 7

6.7.2022: Delivery Order for 40,000 boxes of TinyTAN Message Chocolates, comprising of 4 types of 10,000 boxes each type; the 4 types are described as “Holidays”, ‘Sweet Time”, “Dynamite” and “Wappen”. The delivery is stated as in respect of Invoice No ESDO112480The receipt of the goods were acknowledged by TOGL’s representative one Nicholas with a rubber stamp of TOGL and countersigned by person who received, the rubber stamp bearing the words “RECEIVED / APPROVED BY”: see Exhibit “FC-2” to the Plaintiff’s Affidavit-in-Support, Enclosure 10 at page 17. Delivery Order bears these words “Goods sold are not returnable, refundable or exchangeable within 10 working days from the date hereof”

11.7.2022: Invoice ESDO112484 was issued by the Plaintiff to TOGL for 4,000 boxes of 4 types of chocolates at RM75.00 per box for a total amount of RM300,000.00: see Exhibit “FC-2” to the Plaintiff’s Affidavit-in-Support, Enclosure 10 at page 22. The Invoice contains the words “Goods sold are not returnable, refundable or exchangeable within 10 working days from the date hereof”. Wechat communications between Fanny of the Plaintiff and Calvert of the Defendant (TOGL): Exhibit “FC-1” to the Plaintiff’s Affidavit-in-Support, Enclosure 10 at pages 8:

12.7.2022 16:43 Calvert : tiny tan 4th pymt paid PDF document 70KB-togl rhb 2022.07.12-02 etern…orship.pdf

18.7.2022 21:39 Calvert : tiny tan 5th pymt paid PDF document 70KB-togl rhb 2022.07.18-01 etern…orship.pdf : tiny tan 6th pymt paid PDF document 70KB-togl rhb 2022.07.25-17 etern…orship.pdf

18.7.2022: Invoice ESDO112485 was issued by the Plaintiff to TOGL for 4,000 boxes of 4 types of chocolates at RM75.00 per box for a total amount of RM300,000.00: see Exhibit “FC-2” to the Plaintiff’s Affidavit-in-Support, Enclosure 10 at page 23. The Invoice contains the words “Goods sold are not returnable, refundable or exchangeable within 10 working days from the date hereof”. 8

25.7.2022: Invoice ESDO112486 was issued by the Plaintiff to TOGL for 4,000 boxes of 4 types of chocolates at RM75.00 per box for a total amount of RM300,000.00: see Exhibit “FC-2” to the Plaintiff’s Affidavit-in-Support, Enclosure 10 at page 24. The Invoice contains the words “Goods sold are not returnable, refundable or exchangeable within 10 working days from the date hereof”. Wechat communications between Fanny of the Plaintiff and Calvert of the Defendant (TOGL): Exhibit “FC-1” to the Plaintiff’s Affidavit-in-Support, Enclosure 10 at pages 8:

1.8.2022 16:24 Calvert : Hi Fanny, my finance ask me to request the invoice for each week payment (20/6, 27/6, 4/7, 11/7, 18/7, 25/7)? auditor is asking finance Invoice under TOGL Technology Sdn Bhd G/F, Block D, Soho 2, Empire Damansara Jalan PJU 8/8A, Damansara Perdana Petaling Jaya, Selangor 47820

1.8.2022 17:28 PDF Document : ESDO112486_TOGL Technolo..n Bhd. pdf”

1.8.2022: Invoice ESDO112487 was issued by the Plaintiff to TOGL for 4,000 x 4 boxes of 4 types of chocolates at RM75.00 per box for a total amount of RM300,000.00 x 4 = RM1,200,000.00. In this invoice, there is a note which reads “Refer to ESDO112480 dated 04.07.2022 each 4,000 boxes are the remaining quantity of each 10,000 boxes”: see Exhibit “FC-2” to the Plaintiff’s Affidavit-in-Support, Enclosure 10 at page 25. The Invoice contains the words “Goods sold are not returnable, refundable or exchangeable within 10 working days from the date hereof”.

7.9.2022: JBU Holdings Pte Ltd’s letter to TOGL for attention of Clavin Choo with the contents: “Payment Outstanding Reminder: This is a letter to notify you that you have past outstanding amount with regard to the following invoice: 9 Invoice No.

Period

RM3,379.70 5 Jul 2022 60 days JBU-20220616

June 2022 83 days ESDO112487 RM1,200,000. 00 1 Aug 2022 38 days It would be greatly appreciated if you could confirm receipt of this invoice and advise as to whether payment has been scheduled. I have attached a copy of the invoice and delivery order for your reference. If you require any further information from our side, please let me know”. see Exhibit “FC-3” to the Plaintiff’s Affidavit-in-Support, Enclosure 10 at page 27.

10.9.2022: TOGL’s reply with the following contents: “Payment Outstanding Reminder. We acknowledge on the invoice No. ESDO112481 and payment will be made accordingly from our end. However, we would like to raise objection with regards Invoice No JBU-20220616 and ESO112487. i. Invoice No JBU-20220616 – The said Invoice is not issued under TOGL Technology Sdn Bhd [hereinafter the “Company”) for it to be outstanding of our company; ii. Invoice No ESO112487 – No such invoice received by our end prior to the letter dated 7th September from your goodselves. In clarification, collaboration for the purchase and delivery of the TinyTAN Chocolate capped at 6,000 boxes [mutual agreement Michael Toh for the Company and Eric Tan of JBU Holdings Pte Ltd, (hereinafter referred as “Mutual Agreement”)], whereby the Company have made all the payment and no further outstanding as of the 6,000 boxes. For avoidance of doubt, the Company did not make any order for the 4,000 boxes and shall not be liable for the Invoice No ESO112487. Aside the above, we also will schedule to return the 4,000 boxes delivered beyond the Mutual Agreement to your goodselves as to be mutually agreed upon. We are pleased with our collaboration over the years and we wish to continue a great relationship with 10 you.” : see Exhibit “FC-3” to the Plaintiff’s Affidavit-in-Support, Enclosure 10 at page 28.

15.9.2022: The Plaintiff’s reply to TOGL as follows: “Payment Outstanding Reminder Refer to your letter dated 10 September 2022. Hereby, to clarity your objections: i. Invoice No. JBU-20220616 – The invoice is amended and issue to TOGL Technology Sdn Bhd for payment purposes and attached in with this letter. ii. Invoice No. ESDO112487 – This invoice is the remaining 4,000 sets for your company to pay, based on the quantity received in ESDO112480, the invoice clearly stated please refer to the said ESDO112489 dated 4 July 2022 (each 4,000 boxes are the remaining quantity of each 10,000 boxes) The terms in the delivery order which also stated goods sold are not returnable, refundable or exchangeable. There is no any mutual agreement but verbal agreement between Mr. Michael Toh and Datuk Abraham Tan that according to the total quantity in ESDO112480 dated 4 July 2022 received by your company, Mr. Michael Toh uttered to arrange payment a sum of RM3,000,000.00 in 10 installments, every Monday via IBG transfer RM300,000.00 starting first installment from 20 June 2022 and last installment on 22 August 2022. We have not yet received payment for the balance. We have carefully looked into the situation and your company inspected and received goods in well condition and so far we yet to receive your reason of return. We can’t accept the return according to our policy. We appreciate if you have complete the transfer for ESDO112481 and JBU20220616, kindly email to us the payment slip for our record. If you have any issue on the billing company, please notify us to change.” : see Exhibit “FC-3” to the Plaintiff’s Affidavit-in-Support, Enclosure 10 at page 29. 11 The Wechat communications between Fanny of the Plaintiff and Calvert of the Defendant (TOGL) from June 2022 to August 2022 are reproduced in Exhibit “FC-1” to the Plaintiff’s Affidavit-in-Support, Enclosure 10 at pages 7 to 10: m “20.6.2022 19:42 Fanny : OK will check tomorrow.

20.6.2022 20:11 Fanny : Hi Calvert May I know the amount Fanny : Calvert :Today payment made ald ya Calvert : should 300k Ten weeks payment

20.6.2022 20:17 Fanny : Noted thanks

27.6.2022 11:07 Calvert : Hi fanny, the cheque also dun bank in ya. We will bank in you. Can I arrange to collect the old cheque with you? 16:36 PDF document 71KB-togl rhb 2022.06.207-01 etern…orship.pdf 30.6.2022 15:05 Fanny : You can use 3D characters

4.7.2022 16:22 Calvert : eternal strong 3rd pymt RM300k paid PDF document 70KB-togl rhb 2022.07.04-01 etern…orship.pdf

12.7.2022 16:43 Calvert : tiny tan 4th pymt paid PDF document 70KB-togl rhb 2022.07.12-02 etern…orship.pdf

18.7.2022 21:39 Calvert : tiny tan 5th pymt paid PDF document 70KB-togl rhb 2022.07.18-01 etern…orship.pdf : tiny tan 6th pymt paid PDF document 70KB-togl rhb 2022.07.25-17 etern…orship.pdf 12

1.8.2022 16:24 Calvert : Hi Fanny, my finance ask me to request the invoice for each week payment (20/6, 27/6, 4/7, 11/7, 18/7, 25/7)? auditor is asking finance Invoice under TOGL Technology Sdn Bhd G/F, Block D, Soho 2, Empire Damansara Jalan PJU 8/8A, Damansara Perdana Petaling Jaya, Selangor 47820

1.8.2022 17:28 PDF Document : ESDO112486_TOGL Technolo..n Bhd. pdf” [19] The contemporaneous documentary evidence shows clearly that at all material times prior to the raising of any dispute for the first time on 10 September 2022, the agreement and payment arrangement between the parties are as follows:

The Defendant TOGL agreed to pay RM300,000.00 per week for ten (10) weeks to the Plaintiff;

The period of the 10 weekly payments started from 20.6.2022 onwards until end August 2022;

The goods totalling 10,000 boxes per type x 4 types = 40,000 boxes were delivered at the same time in one single delivery by the Plaintiff to TOGL on 5 July 2022;

There were some old cheques issued by the Defendant and placed with the Plaintiff in connection with the sale and purchase of these chocolates; and

The old cheques were returned by the Plaintiff to the Defendant in exchange for the Defendant’s agreement to bank in the payments of RM300,000 per week for 10 weeks. [20] In the circumstances, the Plaintiff’s version is substantiated by contemporaneous documentary evidence whereas the Defendant’s version is contradictory to the contemporaneous documentary evidence. 13 [21] It is also admitted and/or confirmed by the Defendant in its contemporaneous letters and Wechat conversations at the material times that the total quantity of chocolates agreed upon and delivered were 40,000 boxes with a total value of RM3,000,000. The Wechat conversations dated 20.6.2022 between the Defendant’s Calvert and the Plaintiff’s Fanny are as follows: “20.6.2022 19:42 Fanny : OK will check tomorrow.

20.6.2022 20:11 Fanny : Hi Calvert May I know the amount Fanny : Calvert :Today payment made ald ya Calvert : should 300k Ten weeks payment

20.6.2022 20:17 Fanny : Noted thanks”. [22] This contemporaneous and indisputable Wechat records show that as early as 20.6.2022, the Defendant knew and confirmed that the total amount of the price of chocolates would be RM300,000 X 10 = RM3,000,000.00 to be paid in 10 weekly instalments of RM300,000.00 per week. This RM3,000,000.00 is the total price of the 10,000 sets (40,000 boxes) of chocolates. [23] Between 20.6.2022 (Wechat conversation when the Defendant agreed to pay RM300,000.00 per week for 10 weeks: see Enclosure 10 page 7) and end July 2002, the Defendant in fact paid weekly instalments of RM300,000.00 each by way of interbank fund transfers and notified the Plaintiff’s Fanny of these instalments up to “6th payment” as follows: Interbank transfers Wechat notifications

27.6.2022 RM300,000: Encl. 10 pg 11

4.7.2022: RM300,000: Encl. 10 pg 12 4.7.2022: “3th payment RM300K paid”: Encl. 10 pg 9

12.7.2022: RM300,000: Encl. 10 pg 13 12.7.2022: “4th payment RM300K paid”: Encl. 10 pg 9 14

18.7.2022: RM300,000: Encl. 10 pg 14 18.7.2022: “5th payment RM300K paid”: Encl. 10 pg 9

25.7.2022: RM300,000: Encl. 10 pg 15 25.7.2022: “6th payment RM300K paid”: Encl. 10 pg 10 [24] In the premises, this Court holds that the total quantity agreed in the sale and purchase and which were delivered was 40,000 boxes with a total price of RM3,000,000.00. [25] In the circumstances, the Defendant’s allegation of only 24,000 boxes were agreed to be bought and the balance unpaid 16,000 boxes with an unpaid price of RM1,200,000.00 was not bought by the Defendant is “assertion, denial or dispute [which] is equivocal, or lacking in precision or is inconsistent with undisputed contemporary documents or other statements by the same deponent or is inherently improbable in itself “ within the meaning decided by the Supreme Court in Bank Negara Malaysia v Mohd Ismail & Ors [1992] 1 MLJ 400. [26] Hence, such allegation or assertion of the Defendant regarding the agreed quantity of purchase does not raise a triable defence in our present case. Analysis and conclusion on alleged defective quality of the chocolates delivered [27] In the Defendant’s Defence and Counterclaim (Enclosure 10), parts of the delivered chocolates were mouldy and in December 2022 179 sets of mouldy chocolates were returned by customers [paragraph 13 of the Defence and Counterclaim]. [28] Any goods returned by customers on ground of defect in quality would be accompanied by customers’ complaint documents, documents on returning of the goods and/or photographs on the defective goods. [29] Nevertheless, not a single document or photograph has been exhibited by the Defendant to its Affidavit-in-Reply when opposing the Plaintiff’s application for summary judgment. [30] Moreover, the allegation for the first time regarding alleged mouldy chocolates was made in December 2022 (about 5 months after the 15 delivery of the chocolates) after the Plaintiff’s Writ and Statement of Claim had been served on the Defendant [see the Defendant’s Memorandum of Appearance dated 5 December 2022 filed by its solicitors], and no photograph or document was produced to show any sample or example of alleged “mouldy” chocolate, although a mouldy condition of chocolate would be visible from its surface and would be clearly shown in photographs. [31] This Court also finds that the Defendant’s allegation of some of the delivered chocolates being allegedly mouldy chocolates was a belated allegation raised after the filing and service of the Plaintiff’s writ and Statement of Claim in the present suit as an afterthought and is not supported by any documentary evidence whatsoever here. [32] Moreover, the express term of the Delivery Order and Invoice was that any complaint of quality must be notified and returned in writing within 10 working days. The Defendant has failed to complain or return any of the delivered chocolates within the said contractual period for complaint and return of goods. [33] In the circumstances, the Defendant’s allegation of mouldy chocolates is an “assertion, denial or dispute [which] is equivocal, or lacking in precision or is inconsistent with undisputed contemporary documents or other statements by the same deponent or is inherently improbable in itself “ within the meaning decided by the Supreme Court in Bank Negara Malaysia v Mohd Ismail & Ors [1992] 1 MLJ 400. [34] In the premises this Court holds that the Defendant has failed to raise a triable defence of alleged mouldy chocolates here. [35] Neither is there any special circumstance which could constitute some other reason for a trial in the present case. Conclusion [36] In the circumstances, the Plaintiff should be given summary judgment in the present case. [37] In conclusion, this Court on 12 July 2023 this Court granted summary judgment RM1,203,379.70 (as the unpaid balance price of the chocolates delivered but not paid), interest 16 thereon and costs of application in favour of the Plaintiff. [38] Of this amount of RM1,203,379.70, RM1,200,000.00 was the unpaid value of 4,000 sets (16,000 boxes) of chocolates sold and delivered , and RM3,379.70 was the invoice dated 5.7.2022 for RM3,478.00 as demurrage and storage charges from 26.6.2022 to 2.7.2022 less RM98.30 Lazada purchase for 1 box of Dynamite chocolate: see Enclosure 10 page 19, Exhibit “FC-2” to the Plaintiff’s Affidavit-in-Support. Dated this : 7th August 2023 Signed ..……................................................................. TEE GEOK HOCK JUDGE HIGH COURT OF MALAYA AT SHAH ALAM (NCvC 10) To the parties’ solicitors:

For the Plaintiff : Ravin Woodhull Fong Lip Jean Messrs Wong & Ting (Shah Alam)

For the Defendant : Melvin Chong Jia Shern Amelia Jong (PDK) Messrs Ringo Low & Associates (Petaling Jaya)