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YANG FONG M&E ENGINEERING TRADING SDN BHD [COMPANY NO.: 201601018766 (1189702-X)]
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/akn/my/judgment/high-court/2022/6ff29160-6f8b-451c-9151-6947c098d0b8
High Court of Malaysia8 Sept 2022WA-22NCC-77-02/2022
The written judgment as the court issued it, with the coram, case number, and source links. Every paragraph has its own anchor.
Citations and treatment detected automatically from later judgments and the authorities this decision relies on.
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Earlier cases and laws this decision relies on
“(Dr) Ting Pek Khiing [1999] 3 MLJ 402, where Hasan JC, stated: “The learned authors in The Law of Evidence by Ratanlai and Dhirajlal (17 Ed, 1987) made the following comments relating to s 17 of the Evidence Act at p 53: Admissions may be oral or contained in documents, e.g. letter, depositions, affidavits, plaints, wr”
“y to cases where there is no reasonable doubt that a Plaintiff is entitled to judgment and where therefore it is inexpedient to allow a Defendant to defend for mere purposes of delay”. (Jones v.Stone [1894] AC 122). Where there is any serious conflict to matters of fact or where any real difficulty as to matters of law”
“the invoice of which they have been served relating to any contract it is to be estopped from denying that payment is due from them. See Syarikat Pakar Kayu dan Perdagangan Sdn Bhd v. Maa-sk Sdn Bhd [1986] CLJ 694 (Rep); [1986] 1 CLJ 595; MP Factors Sdn Bhd v. Suangyan Projects Sdn Bhd & 3 Ors [2006] 1 LNS 358; [2007]”
“Kwok Daily News Sdn Bhd & Anor [1985] CLJ (Rep) 632 at p. 637).” [18] The Defendants need only raise one triable issue to be given leave to defend — South East Asia Insurance Bhd v Kerajaan Malaysia [1996] MLJU 642; [1998] 1 CLJ 1045; HSBC Bank Malaysia Bhd v Ng Tien Beng & Ors [2008] 9 CLJ 631; Stamford College Bhd v”
“ut prejudice’ basis. Part payments amount to an admission - CCG Concrete Constructions (M) Sdn Bhd v Rich Avenue Sdn Bhd [2000] 7 MLJ 46 and Kris Heavy Engineering & Construction Sdn Bhd v Lewis & Co [2017] MLJU 906;”
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YANG FONG M&E ENGINEERING TRADING SDN BHD [COMPANY NO.: 201601018766 (1189702-X)]
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MUHAMMAD NG TIAN SUE (NRIC NO. K/P: 510912-71-5077) ... DEFENDANTS GROUNDS OF JUDGMENT Introduction [1] Enclosure (“Enc.”) 9 is the Plaintiff’s application for summary judgment pursuant to Order 14 of the Rules of Court 2012 (“ROC 2012”). Background [2] The Plaintiff is in the business of manufacturing and selling steel poles. [3] Between February 2020 to September 2020, pursuant to the Plaintiff’s quotations, the 1st Defendant has placed various purchase orders with the Plaintiff for the supply and delivery of goods to Cambodia. The Plaintiff issued 10 invoices each with payment terms of 60 days (“due date”) totaling RM 2,738,090.00 to the 1st Defendant for the goods supplied and delivered as follows: No. Invoice Number Date Payment Due Date Amount (RM)
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87160 5.6.2020 5.8.2020 153,600.00 2. 87404 1.7.2020 31.8.2020 172,800.00 3. 87405 1.7.2020 31.8.2020 408,860.00 4. 87412 1.7.2020 31.8.2020 39,000.00 5. 87675 22.7.2020 21.9.2020 481,060.00 6. 88101 19.8.2020 19.10.2020 725,930.00 7. 88273 3.9.2020 3.11.2020 437,250.00 8. 88302 4.9.2020 4.11.2020 40,700.00 9. 88371 9.9.2020 9.11.2020 278,680.00 10. 88402 11.9.2020 11.11.2020 210.00 TOTAL 2,738,090.00 [4] The 2nd Defendant vide a Letter of Guarantee & Indemnity dated 8.11.2019 (“the Guarantee”), agreed and undertook to irrevocably and unconditionally guaranteed as principal debtor and not merely as surety the payment on demand of all monies due to the Plaintiff from the 1st Defendant arising from or in connection with the supply of the goods to the 1st Defendant. [5] There was an alleged sum of RM2,221,768.00 owing to the Plaintiff as of 31.3.2021 – see statement of account at exhibit KSL-
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[6] Between April and September 2021, there was a flurry of email between the parties set out in exhibit KSL-9, contents of which I will discuss in a later part of this judgment culminating in a further payment of RM200,000 in 4 instalments of RM 50,000 each on 24.6.21, 1.10.21, 2.11.21 and 10.12.21 bringing the principal sum outstanding to the Plaintiff to RM2,021,768.00 as reflected in the Statement of account dated 31.12.21 (exhibit KSL-10 pg. 153). [7] The Plaintiff through its solicitors by letters demanded from the 1st Defendant and 2nd Defendant the outstanding amount of RM 2,021,768.00 as appearing in the Statement of account dated 31.12.21 together with interest by hand and WhatsApp and/or post. [8] No payment was made, and hence in this action, the Plaintiff claimed a sum of RM2,021,768.00 together with interest against both Defendants for goods sold to the 1st Defendant and delivered to Cambodia in accordance with the 1st Defendant’s Purchase Orders. The Defendants’ case [9] In resisting summary judgment, the Defendants contended that the Plaintiff has not discharged the burden to establish a prima facie case and also to come with valid proof of its claim first and only if this hurdle is passed, then the burden shifts to the Defendants to show that there are triable issues or defence on merit. In this case, the Defendants have shown that the Plaintiff has failed to pass this hurdle. [10] The gist of the Defendants’ contentions on triable issues are:
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10.1 The reliefs sought by the Plaintiff amount to a double claim which, if allowed, will result in overpayment - the reliefs prayed for are for separate orders against each of the Defendants which amounts to RM 4,043,536.00 in total, when in fact, the price of the goods claimed by the Plaintiff is only RM 2,021,768.00 citing in support Sumathy a/p Subramaniam v Subramaniam a/l Gunasegaran and another appeal [2017] 6 MLJ 753 at page 764: “[24] … Where the act is over a non-payment of a judgment debt, the appellant debtor must not be left uncertain of the exact amount of the debt due. From the terms of the judgment, it cannot be that both appellants are required to pay exactly the same sum. As joint debtors, each can only be required, under the law and as ordered by the court, to pay the sum stipulated, jointly and in equal proportions. … [27] … If both appellants were to pay up the same amount as they are required to do under the bankruptcy notices, the respondent would effectively be very much overpaid. Clearly, the sum stipulated in both bankruptcy notices are inaccurate and do not accord with the terms of the summary judgment. (Counsel’s emphasis)
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10.2 The Plaintiff is not entitled to summary judgment for RM2,021,768.00 due to its failure to prove delivery of the goods by producing the relevant delivery orders:
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10.2.1 the claim is excessive as it includes the price for goods not delivered by the Plaintiff to the 1st Defendant;
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10.2.2 there is no unequivocal admission of any debt by reason of the fact that the amount owed was not stated in the said emails; and
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10.2.3 the Plaintiff failed to produce the delivery orders duly signed and acknowledged by the 1st Defendant as valid proof of delivery of the goods contrary to Maxprom Bina Sdn Bhd & Ors v Setiamix Sdn Bhd [2020] 1 LNS 1678.
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10.3 The Plaintiff failed to prove that a proper and valid demand was made against the 2nd Defendant to trigger his liability under the Guarantee dated 08.11.2019 as the letters of demand were wrongly addressed; in this regard, the 2nd Defendant’s address is at “Desa Cindaimas Condominium” and not “Desa Cindamas Condominium” as stated in the Plaintiff’s letters. The wrong address is prima facie evidence of the lack of proper service; as such, the Plaintiff is not entitled to rely on the presumption of service provided in clause 8 of the Guarantee, citing in support of its arguments, Soon Peng Yam & Anor v Bank of Tokyo-Mitsubishi (Malaysia) Bhd [2004] 2 MLJ 31 and SMEB Asset Management Sdn. Bhd. (yang telah membeli dan mengambil alih sebahagian daripada akaun milik Small Medium Enterprise Development Bank Malaysia Berhad dan dahulunya dikenali sebagai Bank Perusahaan Kecil & Sederhana Malaysia Berhad) v Rusdi Bin Embong & Ors [2021] 1 LNS 656 that service of the notice of demand is a sine qua non for an ‘on demand guarantee’ before liability of the guarantor can arise. Law on Summary Judgment Applications [11] As to the Court’s function in hearing an application under Order 14, it will be useful to recall the authoritative pronouncements of the Federal Court in National Company for Foreign Trade v Kayu Raya Sdn Bhd [1984] 2 MLJ 300; [1984] 2 CLJ 220: “We think it appropriate to remind ourselves once again that in every application under Order 14 the first considerations are (1) whether the case comes within the Order and (b) whether the Plaintiff has satisfied the preliminary requirements for proceeding under Order 14. For the purposes of an application under Order 14 the preliminary requirements are:
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(i) the Defendant must have entered an appearance;
Subparagraph
(ii) the statement of claim must have been served on the defendant; and
Subparagraph
(iii) the affidavit in support of the application must comply with the requirements of Rule 2 of the Order 14. It is to be observed that a case is not within Order 14 (a) where no statement of claim has been served on the defendant; (b) where the indorsement on the writ includes a claim or claims outside the scope of Order 14 as coming within Rule 1(2); (c) where the affidavit in support of the application is defective, e.g. in omitting to state the deponent's belief that there is no defence to the claim or part to which the application relates; (d) where the application is made in an action against the Government [Order 73 Rule 5(1)]. 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 became entitled to judgment. The burden then shifts to the defendant to satisfy the Court why judgment should not be given against him [see Order 14 Rules 3 and 4(1)].” [12] It is important to be reminded that in an Order 14 ROC 2012 application for summary judgment, the Court must look at the matter as a whole and ask itself whether the defendant has satisfied the Court that there is an issue or question in dispute which ought to be tried, and if he cannot, he has to show there ought for “some other reason to be a trial” of that claim or part of the claim pursuant to O. 14 r. 3(1) ROC 2012. [13] Where a defendant is able to demonstrate facts to show that he has raised a defence or reasonable grounds for setting up a defence or even a fair probability that he has a bona fide defence, he ought to be given leave to defend. This discretion lies with the judge. [14] It is also to be borne in mind that the defendant must raise an arguable issue that requires a trial in order to determine it: Voo Min En & Ors. v Leong Chung Fatt [1982] 2 MLJ 241. [15] In Bank Negara Malaysia v Mohd Ismail Ali Johor & Ors [1992] 1 MLJ 400, the Supreme Court succinctly summarized the approach to be taken in dealing with the affidavits: “Under O. 14 when a fact is asserted by one party and denied by another, and such denial is equivocal or lacking in precision or is inconsistent with undisputed contemporary documents or other statement by the same deponent or is inherently improbable in itself, 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. Where the issue raised is solely a question of law without reference to any facts or where the facts are clear and undisputed, the court should exercise its duty under O
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If the legal point is understood and the court is satisfied that it is unarguable, the court is not prevented from granting a summary judgment merely because 'the question of law is at first blush of some complexity and therefore takes a little longer to understand'. (See Cow v Casey 6 and European Asian Bank AG v Punjab & Sind Bank 7 at p 516.)” [16] The principle governing the exercise of power under O.14 of the Rules of Court 2012 was stated in Jacobs v Booth Distillery Co. [1901] 85 LT 262 where Halsbury LC observed: “People do not seem to understand that the effect of Order 14 is that, upon the allegation of the one side or the other, a man is not to be permitted to defend himself in court; that his rights are not to be litigated at all. There are something too plain for argument; and when there were pleas put in simply for the purpose of delay which only added to the expense, and where it was not in aid of justice that such things should continue, Order 14 was intended to put an end to that state of things, to prevent sham defences, from defeating the right of parties by delay, and at the same time causing great loss to the Plaintiff s who were endeavouring to enforce their rights. “ [17] In Southern Finance Bhd v Sun City Development Sdn Bhd & Anor [2006] 7 CLJ 464, it was held: “The general principle is where a Defendant shows that he has a fair case for defence or reasonable grounds for setting up a defence or even a fair probability that he has a bona fide defence he ought to be given leave to defend (Saw v.Hakim 5 TLR 72). A Defendant should not be shut out from defending unless it is very clear indeed that he has no case in the action under discussion (Sheppards v. Wilkinson 6 TLR 13). The power to give summary judgment under O. 14 is “intended only to apply to cases where there is no reasonable doubt that a Plaintiff is entitled to judgment and where therefore it is inexpedient to allow a Defendant to defend for mere purposes of delay”. (Jones v.Stone [1894] AC 122). Where there is any serious conflict to matters of fact or where any real difficulty as to matters of law arises, summary judgment under O. 14 should not be granted. (Electric and General Corpn. v.Thomson-Houston Electric 10 TLR 103). But, however difficult the point of law is, once it is understood and the Court is satisfied that it is really unarguable it will give final judgment (Cow v. Casey [1949] 1 KB 481). (See Percetakan Solai Sdn Bhd v. Kin Kwok Daily News Sdn Bhd & Anor [1985] CLJ (Rep) 632 at p. 637).” [18] The Defendants need only raise one triable issue to be given leave to defend — South East Asia Insurance Bhd v Kerajaan Malaysia [1996] MLJU 642; [1998] 1 CLJ 1045; HSBC Bank Malaysia Bhd v Ng Tien Beng & Ors [2008] 9 CLJ 631; Stamford College Bhd v Iris Corp Bhd [2014] 8 MLJ 178. Findings and Decision of this Court [19] Having addressed Enc. 9 with the foregoing legal principles in mind, and examined in detail the affidavits to see if 'there is a fair or reasonable probability of the Defendants having a real or bona fide defence’, I find that the issues raised by the Defendants are not triable issues or issues which justify a trial. This Court finds that the Plaintiff’s claim is clearly incontestable and that it is a suitable case to be disposed of summarily (see Bank Negara Malaysia v Mohd Ismail (supra). [20] I deal with the issues raised by the Defendants. Whether the Plaintiff has discharged the burden to establish a prima facie case before the burden shifts to the Defendants to satisfy the Court why judgment should not be given against them [21] I find this Defendants’ postulation that the Plaintiff has not discharged the burden to establish a prima facie case and also to come with valid proof of its claim first and only if this hurdle is passed, then the burden shifts to the Defendants to show that there are triable issues or defences is absolutely bereft of merits. [22] In advancing the above argument, it appears to me with utmost respect that there is misapprehension on the part of the Defendants’ counsel on the significance of the proposition of law enunciated by the Federal Court in National Company for Foreign Trade (supra) as alluded to in [11] of this judgment and amount to the Defendants reversing the burden of proof, and reflected the same mistake occasioned by the Court of Appeal in Ho Lai Ying (trading as KH Trading) & Anor v Cempaka Finance Bhd [2004] 2 MLJ 197; [2004] 1 CLJ 232 when it allowed an appeal against summary judgment entered by Cempaka Finance Bhd when it stated interalia: “Thus, a plaintiff would be entitled to obtain summary judgment without trial if he can prove his case clearly which to us would mean that the plaintiff has to establish the existence of certain facts and must prove that those facts exist before the court can determine the issue as to whether the defendant has a defence or has raised an issue against the claim which ought to be tried. set aside.” [23] The Federal Court in Cempaka Finance Bhd v Ho Lai Ying (trading as KH Trading) & Anor [2006] 2 MLJ 685; [2006] 3 CLJ 544 reversed the Court of Appeal’s decision and upheld the summary judgment entered by the High Court. Steve Shim CJ (Sabah & Sarawak) in delivering judgment of the Federal Court held: “[5] Quite clearly, the Court of Appeal has put the burden on the plaintiff to prove his case in an O 14 application. With respect, that cannot be the correct proposition of law. In an application under O 14, the burden is on the plaintiff to establish the following conditions: that the defendant must have entered appearance; that the statement of claim must have been served on the defendant; that the affidavit in support must comply with r 2 of O 14 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 (see Supreme Leasing Sdn Bhd v Dior Enterprises & Ors [1990] 2 MLJ 36). Once those conditions are fulfilled, the burden then shifts to the defendant to raise triable issues. The law on this is trite. In National Company for Foreign Trade v Kayu Raya Sdn Bhd [1984] 2 MLJ 300 the Federal Court has stated thus: We think it appropriate to remind ourselves once again that in every application under O 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 O
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For the purposes of an application under O 14, the preliminary requirements are:
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(i) the defendant must have entered an appearance;
Subparagraph
(ii) the statement of claim must have been served on the defendant; and
Subparagraph
(iii) the affidavit in support of the application must comply with the requirements of r 2 of the O 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 became entitled to judgment. This burden then shifts to the defendant to satisfy the court why judgment should not be given against him.” [6] The proposition of law enunciated by the Federal Court in National Company has been applied in numerous cases. We accept the correctness of that proposition. In reversing the burden of proof as the Court of Appeal in the instant case has done, it has, in our respectful view, misapplied the relevant principles relating to an application for summary judgment under O 14 of the Rules of the High Court 1980.” (Emphasis added) [24] Following the requirements set out in the 2 Federal Court decisions in National Company for Foreign Trade (supra) and Cempaka Finance Bhd (supra), I find on the facts of this case, the Plaintiff has satisfied the preliminary requirements that the Order 14 application has been properly filed. The burden has then shifted to the Defendants to satisfy the Court why judgment should not be given against them. Triable Issues? The reliefs sought by the Plaintiff amount to a double claim which, if allowed, will result in overpayment [25] The Defendant referred to the case of Sumathy a/p Subramaniam v Subramaniam a/l Gunasegaran and another appeal [2017] 6 MLJ 753. In that case, the Court of Appeal held it could not infer that the appellant’s liability to be joint and several as such a reading would go against the plain terms of the judgment – the summary judgment did not specify that the appellants, as judgment debtors, were ‘jointly and severally liable’. The enforcement court, cannot be called to address and interpret the judgment in terms which are simply not there. That would require the court to go behind the judgment. Further, the respondent chose to initiate bankruptcy proceedings against both judgment debtors at the same time. In both bankruptcy notices, the respondent claimed that the judgment debtor owes the same sum as appearing in the default judgment. [26] In the instant case, however, judgment has not been entered yet. There lies the difference! [27] On this issue, it is my respectful opinion that the double claim bemoaned by the Defendants by dint that the Plaintiff did not in the relief sought, state that the sum claimed is to be paid “jointly and severally” by both Defendants can be easily resolved - by ordering the sum and interests claimed to be paid “jointly and severally” by both Defendants if the Plaintiff’s claim is fully made out. I have taken the view that there is equitable jurisdiction to mould the relief to be granted as the Statement of Claim at paragraph 26 (f) contains an omnibus prayer “such further or other relief that this Honourable Court deems fit and just”, see - Lim Eng Kay v Jaafar bin Mohamed Said [1982] 2 MLJ 156 and Sinar Wang Sdn Bhd v Ng Kee Seng [2005] 2 MLJ 42; [2004] 3 CLJ 679. In the latter case, the Court of Appeal adopted the approach in Lim Eng Kay v Jaafar bin Mohamed. Gopal Sri Ram, JCA (as he then was) said: “31 …A Court of Equity exercises its jurisdiction not in a straight jacketed or inflexible fashion. The whole approach of equity to problems coming within its parameters is one of flexibility based on broad and general doctrines rather than strict and unyielding rules. This is the hallmark of equity and it is in this fundamental respect that equity differs and diverges from common law. Equitable remedies and doctrines are therefore flexible and adaptable to particular circumstances. The Court of Equity may therefore mould the relief that is to be granted on particular facts…… 32 There is another reason why we would reject the submission of counsel. In his statement of claim the plaintiff also sought a prayer for ‘other relief that this Honourable Court deems fit and just’. Now these are not empty words. As Salleh Abbas FCJ observed in another context in Lim Eng Kay v Jaafar bin Mohamed Said [1982] 2 MLJ 156: In any case, prayer (e) in paragraph (7), ‘Any other relief which this Honourable Court deem fit to grant’ must not be treated as an ornament to pleadings devoid of any meaning.” [28] Accordingly, I hold the submission of counsel for the Defendants on this issue to be without any real substance. The Plaintiff is not entitled to summary judgment for RM 2,021,768.00 due to its failure to prove delivery of the goods by producing the relevant delivery orders? [29] Whilst it is true that the Plaintiff has not produced the delivery orders, the Plaintiff however argued that the Defendants have implicitly and/or expressly admitted the debt repeatedly:
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29.1 By an email dated 21.4.2021 (exhibit KSL-9, page 146) (6 months after the issuance of last Invoice), the 1st Defendant stated that – "We wished to thank Galvapole for all the support and commitment given to YF (Yang Fong) for this Cambodia project ….. Referring to YF’s (Yang Fong) overdue amount of RM 2,221,768, Mr. Ng wish to propose interest charges of 1% per month for the overdue amount… Mr Ng hopes for your understanding and consideration for his proposal.”
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29.2 By an email dated 22.4.2021(exhibit KSL-9, pg. 145), and in response to the Plaintiff’s request for payment to be made before end of the month, the 1st Defendant assured the Plaintiff “We will try our best to settle.”
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29.3 By an email dated 23.6.2021 (exhibit KSL-9, pg. 133), the 1st Defendant informed the Plaintiff – “We wished to thank Galvapole for all the support and commitment given to YF (Yang Fong) for this Cambodia project. ………. We hope the 1 st disbursement of fund is sufficient for Mr Ng to make full settlement to Galvapole. Shall the 1st disbursement amount not sufficient for full settlement, Mr Ng will make half (1/2) of the outstanding amount to Galvapole and balance payment will be made subsequently subjected to back-to-back disbursement by Exim Bank. ……….. Mr Ng hopes for your understanding and consideration for his proposal”.
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29.4 By a letter dated 18.8.2021 exhibit KSL-9, pg. 148), the 1st Defendant informed the Plaintiff – “We wish to request for your goodwill to allow for a little more time to us by not issuing any Letter of Demand until end of August 2021 concerning our overdue account. We are committed to make arrangement for partial payment or full payment once we have received the first disbursement into YF (Yang Fong) account by end of August 2021”.
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29.5 By an email dated 10.9.2021 (exhibit KSL-9, pg124), the 1st Defendant notified the Plaintiff – “The 50k per monthly payment starting 15 th September 2021 will be a temporary measure until YF (Yang Fong) receives the fund disbursement from Exim Bank that we hope to materialise soon. ..Once YF (Yang Fong) receives the funding, a full settlement will be made to Galvapole immediately”. [30] Weighing the evidence carefully, with respect, I find the Defendants’ contention that the Plaintiff is not entitled to summary judgment for RM 2,021,768.00 due to (i) its failure to prove delivery of the goods by producing the relevant delivery orders; (ii) the claim is excessive as it includes the price for goods not delivered by the Plaintiff to the 1st Defendant; and (iii) that there is no unequivocal admission of any debt by reason of the fact that the amount owed was not stated in the said emails, hold no water at all and are ‘as bare as winter trees’ – William Wordsworth :
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30.1 First, the burden is on the Defendants to show why summary judgment should not be entered. In postulating that goods were not delivered, tellingly, the 1st Defendant could not even condescend into particulars on what goods were not received. It remains a bare assertion; Bare denials or assertions do not constitute evidence and they cannot give rise to triable issues - Chen Heng Ping @ Tian Seow Hock & 5 Ors v. Intradagang Merchant Bankers (M) Berhad [1995] 3 CLJ 690;
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30.2 Second, the email in exhibit KSL-9 bears the subject “SOA March 2021 & REMINDER OVERDUE ACCOUNT”, each of the email stated at paras 29.1, 29.2 and 29.3 above were copied to the 2nd Defendant; the 1st Defendant’s letter to the Plaintiff referred to at para 30.4 requesting for the Plaintiff’s goodwill not to issue any Letter of Demand until end of August 2021 concerning “our overdue account” and that they are “committed to make arrangement for partial payment or full payment once we have received the first disbursement into YF (Yang Fong) account by end of August 2021” was signed by the 2 nd Defendant;
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30.3 Third, the email dated 21.4.2021 referred to at para 29.1 specifically admits and overdue amount of RM 2,221,768 and further stated that the 2nd Defendant proposed interest charges of 1% per month for the overdue amount stated. If the contents of this mail were incorrect, it is noteworthy that the email was copied to the 2nd Defendant but incredulously, there was not a whisper of protest from him for the record;
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30.4 Fourth, the email described at para 30.5 informing “50k per monthly payment starting 15th September 2021 will be a temporary measure until YF (Yang Fong) receives the fund disbursement from Exim Bank that we hope to materialise soon” and assuring “Once YF (Yang Fong) receives the funding, a full settlement will be made to Galvapole immediately” was preceded by the 1st Defendant’s email of 8.9.2021 to the Plaintiff stating “ Mr Ng will make RM50k monthly payment as confirmed.” Again, there was not a whisper of protest from the 2 nd Defendant on this 8.9.2021 email;
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30.5 Fifth, from the admitted sum of RM2,221,768 in the 21.4.21 email as alluded to above, there were subsequent payments totaling RM200,000 in 4 instalments of RM 50,000 each made by the 1st Defendant on 24.6.21,
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1.10.21, 2.11.21 and 10.12.21 thus reducing the principal sum outstanding to the Plaintiff to RM 2,021,768. This is reflected in the Statement of account dated 31.12.21 (exhibit KSL- 10 pg. 153). These part payments were not denied; neither were they paid on a ‘without prejudice’ basis. Part payments amount to an admission - CCG Concrete Constructions (M) Sdn Bhd v Rich Avenue Sdn Bhd [2000] 7 MLJ 46 and Kris Heavy Engineering & Construction Sdn Bhd v Lewis & Co [2017] MLJU 906;
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30.6 Six, even when part payments were made as recent as on 10.12.21, there was nary a protest as to alleged non-delivery. After this suit was brought by the Plaintiff 2 months later, non-delivery was alleged. It is ‘as clear as day’ to this court in the circumstances, that non-delivery was raised as a misconceived afterthought;
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30.7 Seven, both the statement of accounts as at 31.3.21 and 31.12.31 inter alia stipulated that any discrepancy in the statement is to be notified to the Plaintiff within 7 days. The 1st Defendant did not send the Plaintiff any notice of discrepancy within the stipulated period;
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30.8 Last but not least, I have not overlooked that the 1st Defendant did not at all report any discrepancies in the invoices within the stipulated period to the Plaintiff and this sealed the fate of the Defendants’ contentions. Each of the Invoices inter alia state that:
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30.8.1 any discrepancies in the invoice is to be reported to the Plaintiff within 10 days of receipt failing which the indebtedness is deemed conclusive; and
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30.8.2 interest at 1.5 % per month would be charged on overdue payments. [31] That is not all. [32] Of pertinence to note, the indebtedness is deemed conclusive as stated in the invoices owing to failure to object. The Plaintiff is thus excused from adducing the delivery orders or proof of debt. [33] As can be seen, the facts of this case are distinguishable from the facts in Maxprom Bina Sdn Bhd (supra) relied upon by the Defendants. There exists here overwhelming evidence that the 1st Defendant kept an inelegant silence and made part payments to boot, instead of raising the non-delivery issue immediately and/or dispute the amount claimed by the Plaintiff in its invoices and/or statement of account expeditiously and vigorously. Raising the same only after suit is filed, in this Court’s respectful view, is simply too late and smacks of an afterthought. As such, it is deemed that the 1st Defendant has accepted the amount claimed by the Plaintiff is correct and accurate. The 1st Defendant is therefore estopped from asserting that the amount claimed is not due. See: i. Boustead Trading Sdn Bhd-v-Arab-Malaysian Merchant Bank Berhad [1995] 3 MLJ 331; [1995] 4 CLJ 283 FC at pages 284 and 285, where the Federal Court held that: “[6] Justice of the present case clearly lies in favour of considering the estoppel issue. At the time it received the said invoices of Chemitrade bearing the indorsement specifying the 14-day limit for objection, the appellant had a choice. It could have told the respondent that the 14-day limit was not part of the original arrangement, that it amounted to an abrogation of its rights and that it was not prepared to be bound by the limitation. But it did nothing of the sort. It did not however merely remain silent, for thereafter it actually made payments to those very invoices without any protest. [7] A reasonable man similarly circumstanced as the respondent would have been entitled to assume, as the respondent did, that the appellant was agreeable to the imposition of the 14-day limit. The respondent was clearly influenced by the conduct of the appellant when it paid Chemitrade for those very invoices, and this the respondent would not have done had the appellant protested. The appellant’s attempt to raise this point some seven months later, must be classified as unconscionable and inequitable conduct. It ought not therefore to be permitted to question the validity of the indorsement. [8] The appellant should be estopped from asserting that nothing was due on the impugned invoices. It was the appellant’s silence during the 14-day period that led the respondent to make the payment that was due to Chemitrade. The respondent was therefore entitled to assume that the invoices were good for payment. It would be most unjust for the appellant to now suggest that the respondent ought not to have paid on the disputed invoices. (Emphasis added)” ii. MP Factors Sdn Bhd v Suang Yan Projects Sdn Bhd & Ors [2007] 8 MLJ 602 [HC]: Page 613 “It is an undisputed fact that after being served with the notice to repurchase, the defendants did not at any time raise any protest that the amount demanded is incorrect or that no amount is due and payable to the plaintiff under the agreement. Thus, by the defendants' silence they are estopped from now raising this challenge as the plaintiff was lulled into the belief that the defendants did not intend to challenge the existence of a demand to repurchase the debt, or the correctness of the amount owed by the defendants under the Factoring Agreement.” Page 615 “Each of the invoices also bear a clear statement that any objection to the bills or its items must be notified to them in writing within 14 days of its receipt, failing which the bills would be deemed final and conclusive against the main contractor. Consequently, these invoices are deemed good for payment as there was no objection from the main contractor within the stipulated period. More importantly, the plaintiff had acted to its detriment in releasing the initial payments to the first defendant based on the aforesaid invoices. The defendants ought now to be estopped from stating that they do not owe the plaintiff the sum claimed or any other sums (see Boustead Trading (1985) SdnBhd v Arab Malaysian Merchant Bank SdnBhd [1995] 3 MLJ 331; Hong Leong Leasing SdnBhd v Far East Knitting Sdn Bhd [1996] 2 MLJ 251; Chong Yoong Choy v UOL Factoring SdnBhd [1996] 2 CLJ 605 ). It is also of material bearing to note that the defendants failed to condescend upon any particulars as to the basis of their dispute on the sums claimed by the plaintiff. And, neither did they show in any manner, any manifest error on the face of the Certificate of Indebtedness. Hence, they are bound by the contents of the Certificate (see Chen Heng Ping &Ors v Intradagang Merchant Bankers (M) Bhd [1995] 2 MLJ 363).” (Emphasis added) iii. HTC GLOBAL SERVICES MSC SDN BHD v KOMPAKAR EBIZ SDN BHD [2008] 1 LNS 419 [HC]: “On each and every invoice in Exhibit "S-1" of Enclosure 8, there is a clear statement "Any discrepancies in the invoices should be informed to us within 7 days from the invoice date." There was no protest after the invoices were issued and received by the defendant. See MP Factors Sdn Bhd v. Suangyan Projects Sdn Bhd & 3 Ors [2006] 1 LNS 358; [2007] 4 AMR 327 applying the Federal Court case of Boustead Trading (1985) SdnBhd v. Arab-Malaysian Merchant Bank SdnBhd [1995] 4 CLJ 283; [1995] 3 AMR 2871 per Gopal Sri Ram JCA co-opted at page 336: Each of the invoices also bear a clear statement that any objection to the bills or its items must be notified to them in writing within fourteen (14) days of its receipt, failing which the bills would be deemed final and conclusive against the main contractor. Consequently, these invoices are deemed good for payment as there was no objection from the main contractor within the stipulated period. More importantly, the plaintiff had acted to its detriment in releasing the initial payments to the first defendant based on the aforesaid invoices. The defendants ought now to be estopped from stating that they do not owe the plaintiff the sum claimed or any other sums. ……….. The law is clear. Where a party fails to raise any objection on the invoice of which they have been served relating to any contract it is to be estopped from denying that payment is due from them. See Syarikat Pakar Kayu dan Perdagangan Sdn Bhd v. Maa-sk Sdn Bhd [1986] CLJ 694 (Rep); [1986] 1 CLJ 595; MP Factors Sdn Bhd v. Suangyan Projects Sdn Bhd & 3 Ors [2006] 1 LNS 358; [2007] 4 AMR 327. Similarly, with respect to the third contract which is oral in nature, it is the duty of the defendant to object to the invoices that had been issued and received by them and having failed to do so the same principle of estoppel will apply.” (Emphasis added) [34] In deciding that this issue is not triable, I ought to also mention that it is baffling that the 1st Defendant having acknowledged receipt of the letter of demand (LOD) on 21.1.22 by affixing the company stamp (exhibit KSL-10, pg. 154) did not take exception to the contents of the LOD where delivery of the goods and the balance sum owed were asserted by the Plaintiff – attracting the principle in Wong Hon Leong David v Noorazman bin Adnan [1995] 3 MLJ 283; [1995] 4 CLJ 155 CA and affirmed by the Federal Court in Dream Property Sdn Bhd v Atlas Housing Sdn Bhd [2015] 2 CLJ 453 FC at page 478: “...It is the ordinary nature of businessman to immediately refute any proposition injurious to him contained in letters and not to let it stand (see David Wong Hon Leong v. Noorazman Adnan [1995] 4 CLJ 155) “ 2nd Defendant is not liable - No proper and valid demand made? [35] The 2nd Defendant challenged the service of the notice of demand as a sine qua non for the foundation of legal liability under the Guarantee in the present case. In other words, the demand forms part of the cause of action against the 2nd Defendant. [36] I have construed the Guarantee as a whole, and find that there is a principal debtor clause in clause (a), 1st page of the Guarantee where the 2nd Defendant “guarantee, as principal/s and not merely as surety/ies the payment on demand of all monies due to you (the Plaintiff) and the discharge of all liabilities incurred to you by the Customer (the 1st Defendant) whether alone or with any other body (ies) or person (s).“ With the presence of a principal debtor clause, a demand is obviated unlike the case of Mok Hin Wah & Ors v United Malayan Banking Corp Bhd [1987] 2 MLJ 610 which decided that if a guarantee is an on demand guarantee, a demand was required in order to create a cause of action. [37] In Public Bank v Chan Siok Lie & Ors [1989] 2 MLJ 305, M Shankar J (as he then was) considered Mok Hin Wah's case and the effect of a 'principal debtor clause', and explained the difference in approach to be adopted where there is a principal debtor clause: “I agree that great care should be taken when applying Mok Hin Wah's case to remember that it will only apply if the words of the guarantee specifically make a prior demand a condition precedent to suing the guarantor. There is no general rule that in all cases, regardless of the terms of the document, a prior precise demand is a sine qua non to the commencing of an action. Nor is there any general rule that a prior notice must be given in all cases. The writ itself is a notice: see Malayan Banking Bhd v Lim Chee Leng & Anor [1985] 1 MLJ 214 … …… A far clearer exposition of the law on the point is given in O' Donovon's Modern Law of Guarantee at pp 379–382 … At p 380 of the text it says that even though the amounts under the guarantee are expressed to be payable 'on demand' the inclusion of a 'principal debtor' clause in the body of a guarantee may obviate the necessity for the creditor to make a demand. Reference is made to the comments of Walton J in Esso Petroleum Co Ltd v Alstonbridge Properties Ltd [1975] 1 WLR 1474. This I hold, that where the effect of a guarantee agreement is to make guarantors principal debtors, the necessity for a demand could be obviated because the character of the agreement under which payment is sought is no longer strictly collateral.” (Emphasis added) [38] In Credit Corporation (M) Berhad v Choi Sang & Anor [1989] 1 CLJ (Rep) 440 Siti Norma Yaakob J (as Her Ladyship then was) after considering the Mok Hin Wah case as well as the Public Bank case went further to hold that “[5] The law on the effect of the presence of a principal debtor clause in a guarantee is clear in that it obviates the necessity of a creditor to make a demand. The guarantee is no longer a collateral agreement and as such there is no need for a demand as the issuance of the writ is a demand in itself. Where a guarantee contains both a written demand clause and a principal debtor clause, the latter overrides the condition precedent of a written demand.” [39] If this court should accept the contention by the 2nd Defendant that a proper demand must be made to trigger liability against the 2nd Defendant as guarantor, this would defeat or override the purpose and intention of clause (a) of the Guarantee, which makes the 2nd Defendant a principal debtor, for all monies guaranteed, shall be recoverable from the guarantor as though the 2nd Defendant is the principal debtor. [40] As such, in my judgment, following the principles in Public Bank v Chan Siok Lie & Ors [1989] 2 MLJ 305 and Credit Corporation (M) Berhad v Choi Sang & Anor [1989] 1 CLJ (Rep) 440, there is no requirement to issue a notice of demand upon the 2nd Defendant as a pre-condition to commencing the claim herein - the writ itself is a demand. [41] Soon Peng Yam & Anor v Bank of Tokyo-Mitsubishi (Malaysia) Bhd [2004] 2 MLJ 31 and SMEB Asset Management Sdn. Bhd. v Rusdi Bin Embong & Ors [2021] 1 LNS 656 cited by learned counsel for the 2nd Defendant are distinguishable from this case and, hence not applicable, primarily because those cases did not consider the issue and effect of a 'principal debtor clause'. [42] In case I am wrong, and a notice of demand is necessary, I find that the 2nd Defendant’s posit that he did not receive the letter of demand as his address is at “Desa Cindaimas Condominium” and not “Desa Cindamas Condominium” is a non-starter as first, the 2nd Defendant’s address from the Official Companies Commission Search shows his address as Desa Cindamas. Second, the clear judicial admission of his address at Desa Cindamas at paragraph 1 of his Defence simply cannot be swept under the carpet. The term “judicial admission” is explained in the case of Hu Chang Pee v Tan Sri Datuk Paduka (Dr) Ting Pek Khiing [1999] 3 MLJ 402, where Hasan JC, stated: “The learned authors in The Law of Evidence by Ratanlai and Dhirajlal (17 Ed, 1987) made the following comments relating to s 17 of the Evidence Act at p 53: Admissions may be oral or contained in documents, e.g. letter, depositions, affidavits, plaints, written statements, deeds, receipts, horoscopes. Admissions in pleadings are judicial admissions. They can be made the foundation of rights.” [43] In Yam Kong Seng & Anor v Yee Weng Kai [2014] 4 MLJ 478 FC at [16], Suriyadi Halim Omar FCJ reiterated that it is trite law that a judicial admission made in a pleading stands on a higher footing than evidentiary admission. [44] In light of the judicial admission of his address, with utmost respect, it is both cheeky and idle for the 2nd Defendant to now postulate his address is wrong. [45] Based on the evidence in the present case, I find that there was proper service of the letter of demand dated 11.2.2022 on the 2nd Defendant. The prepaid invoice dated 11.2.2022 and postal tracking No EP 821811437MY were produced as exhibit KSL-11 pg. 167 and 166 respectively. Exhibit KSL-13 at pg. 23 plainly shows the documents in postal tracking No EP 821811437MY was delivered on 12.2.22 at 12:12 pm. As such, it is inherently improbable that there was no service of the letter of demand on the 2nd Defendant and I reject this denial, thus rendering the issue as not triable. At any rate, the letter of demand is deemed served on the 2nd Defendant if sent by prepaid post to the 2nd Defendant’s address pursuant to clause 8 of the Guarantee. [46] In the round, I am satisfied that no bona fide triable issue has been raised by both Defendants. [47] The matter does not come to an end if the Defendants have not been able to raise any triable issue. I think it desirable at this juncture to ask the question, were they able to show there is “some other reason for trial”
Preamble
pursuant to Order 14 rules 3(1)? [48] However, I am not able to find anything relied upon by the Defendants that requires “closer investigation” and constitute there is “some other reason for trial” within the category of what Megarry J had in mind in Miles v Bull [1968] 3 All ER 632, page 637 to 638 as adopted by the Federal Court in United Merchant Finance Bhd v Majlis Agama Islam Negeri Johor [1999] 1 MLJ 657. [49] In Malayan Insurance (M) Sdn Bhd v Asia Hotel Sdn Bhd [1987] 2 MLJ 183, the Supreme Court said at p. 185: “The underlying philosophy in the Order 14 provision is to prevent a plaintiff clearly entitled to the money from being delayed his judgment where there is no fairly arguable defence to the claim. The provision should only be applied to cases where there is no reasonable doubt that the plaintiff is entitled to judgment. Order 14 is not intended to shut out a defendant. The jurisdiction should only be exercised in very clear cases.” [50] I am in complete agreement with counsel for the Plaintiff, that there is no triable issue, nor is there any reason why there should be a trial. In my judgment, the Defendants’ arguments against the grant of summary judgment are plainly unfounded. With respect, this is not a complicated case that can only be properly proved by oral evidence. The Defendants have no defence to the Plaintiff’s claim. A trial will not throw any further light on the matter as all the issues canvassed in the application before the Court are clear and can be decided once and for all without going to trial. Neither should the Plaintiff be put through the expense of proving its claim at trial based on bare assertions by the Defendants. In this regard, I recall the crisp and well-expressed reminder of Vincent Ng J in Suppuletchimi v Palmco Bina Sdn Bhd [1994] 2 MLJ 368: “.. No party in a proceeding is entitled to require the court to accord them valuable time of several days open court viva voce trial only upon mere or bare assertions in their affidavits…” [51] Based on the facts and circumstances here and the propositions of law set out in this judgment, I do not think it unjust to decide the issues raised by the Defendants without a trial. Therefore, I exercised my discretion to order the 1st and 2nd Defendants to jointly and severally pay the Plaintiff as follows:
51
51.1 the sum of RM 2,021,768.00;
51
51.2 interest at the rate of 1.5% per month on the outstanding sum in the invoices from the respective due dates until full payment; and
51
51.3 costs in the sum of RM 6,000.00 subject to allocator. [52] I ought to state that I have found it necessary to discuss authorities not cited by either the Plaintiff or the Defendants’ counsel but which I considered pertinent to the contentions raised. This does not however in my view necessitate any further argument or detract from the basic propositions advanced and argued by both sides. Dated: 11th November 2022 -sgd- ……………………….. Liza Chan Sow Keng Judicial Commissioner High Court of Malaya at Kuala Lumpur COUNSEL: For the Plaintiff : Wee Hee (together with him, Jasper Tan and Philycia Chong) Messrs Jasper Hee Partnership For the Defendant : Cheong Jun Yeng Messrs Shui Tai CASES REFERRED: Sumathy a/p Subramaniam v Subramaniam a/l Gunasegaran and another appeal [2017] 6 MLJ 753 Maxprom Bina Sdn Bhd & Ors v Setiamix Sdn Bhd [2020] 1 LNS 1678 Soon Peng Yam & Anor v Bank of Tokyo-Mitsubishi (Malaysia) Bhd [2004] 2 MLJ 31 National Company for Foreign Trade v Kayu Raya Sdn Bhd [1984] 2 MLJ 300; [1984] 2 CLJ 220 Voo Min En & Ors. v Leong Chung Fatt [1982] 2 MLJ 241 Bank Negara Malaysia v Mohd Ismail Ali Johor & Ors [1992] 1 MLJ 400 Jacobs v Booth Distillery Co. [1901] 85 LT 262 Southern Finance Bhd v Sun City Development Sdn Bhd & Anor [2006] 7 CLJ 464 South East Asia Insurance Bhd v Kerajaan Malaysia [1996] MLJU 642; [1998] 1 CLJ 1045 HSBC Bank Malaysia Bhd v Ng Tien Beng & Ors [2008] 9 CLJ 631 Stamford College Bhd v Iris Corp Bhd [2014] 8 MLJ 178 Ho Lai Ying (trading as KH Trading) & Anor v Cempaka Finance Bhd [2004] 2 MLJ 197; [2004] 1 CLJ 232 Cempaka Finance Bhd v Ho Lai Ying (trading as KH Trading) & Anor [2006] 2 MLJ 685; [2006] 3 CLJ 544 Lim Eng Kay v Jaafar bin Mohamed Said [1982] 2 MLJ 156 Sinar Wang Sdn Bhd v Ng Kee Seng [2005] 2 MLJ 42; [2004] 3 CLJ 679 Chen Heng Ping @ Tian Seow Hock & 5 Ors v. Intradagang Merchant Bankers (M) Berhad [1995] 3 CLJ 690 CCG Concrete Constructions (M) Sdn Bhd v Rich Avenue Sdn Bhd [2000] 7 MLJ 46 Kris Heavy Engineering & Construction Sdn Bhd v Lewis & Co [2017] MLJU 906 Boustead Trading Sdn Bhd v Arab-Malaysian Merchant Bank Berhad [1995] 3 MLJ 331; [1995] 4 CLJ 283 MP Factors Sdn Bhd v Suang Yan Projects Sdn Bhd & Ors [2007] 8 MLJ 602 HTC Global Services Msc Sdn Bhd v Kompakar Ebiz Sdn Bhd [2008] 1 LNS 419 Wong Hon Leong David v Noorazman bin Adnan [1995] 3 MLJ 283; [1995] 4 CLJ 155 Dream Property Sdn Bhd v Atlas Housing Sdn Bhd [2015] 2 CLJ 453 Mok Hin Wah & Ors v United Malayan Banking Corp Bhd [1987] 2 MLJ 610 Public Bank v Chan Siok Lie & Ors [1989] 2 MLJ 305 Credit Corporation (M) Berhad v Choi Sang & Anor [1989] 1 CLJ (Rep) 440 Hu Chang Pee v Tan Sri Datuk Paduka (Dr) Ting Pek Khiing [1999] 3 MLJ 402 Yam Kong Seng & Anor v Yee Weng Kai [2014] 4 MLJ 478 Miles v Bull [1968] 3 All ER 632 United Merchant Finance Bhd v Majlis Agama Islam Negeri Johor [1999] 1 MLJ 657 Malayan Insurance (M) Sdn Bhd v Asia Hotel Sdn Bhd [1987] 2 MLJ 183 Suppuletchimi v Palmco Bina Sdn Bhd [1994] 2 MLJ 368 LEGISLATION/STATUTE: Order 14 of the Rules of Court 2012
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