I-Bon Electrical Engineering Sdn Bhd v Juara Ternobat Sdn. Bhd. (JA-A52NCC-100-02/2025)

The plaintiff filed an application for summary judgment under Order 14 Rule 1 of the Rules of Court 2012 (the ROC 2012) against the defendant. The application was allowed by this Court on 24.12.2025 with costs of RM2,000.

The defendant, dissatisfied with the decision by this Court, filed this appeal.

The plaintiff is a private limited company having its business address at no.14, Jalan Permas 9/9, Bandar Baru Permas Jaya,81750 Masai, Johor.

The defendant is also a private limited company with a registered address at V02-03-03, Lingkaran SV, Sunway Velocity, 55100 Kuala Lumpur, and its main business address at no.44, Jalan Maju 1-12, Taman Lembah Maju, 68000 Ampang, Selangor.

The plaintiff and the defendant had a business relationship in which the plaintiff supplied electrical goods and telephone systems, including installation, setup, and inspection services, as requested by the defendant.

The defendant placed an order with the plaintiff for electrical goods, telephone systems, and installation, preparation, and inspection services during the period from 25.11.2019 to 24.8.2020.

Subsequently, the plaintiff supplied the electrical goods and telephone system, including installation, preparation, and inspection services (the work) as requested by the defendant. However, the defendant has failed to pay the remaining balance for the electrical goods and telephone system, as well as the installation, preparation, and inspection services, totaling

The plaintiff asserts that since August 2020, the defendant has failed to make payments within the designated timeframe, despite the issuance of multiple invoices. According to the plaintiff, they have contacted the defendant several times and demanded payment, but the defendant has not responded. Later, the plaintiff, through its lawyer, sent a notice of demand dated 21.11.2024, requiring the defendant to pay the owed amount. Up to now, no response or payment has been received from the defendant.

The defendant, in its defence, stated that the plaintiff averred that the plaintiff was engaged as a subcontractor to do the work for the defendant. Defendant averred that no additional work was required of the plaintiff, which would have necessitated extra payment. The plaintiff and the defendant did not agree to any variation of the work.

The defendant proposed that the works be carried out by the plaintiff according to the Bill of Quantities. However, at all relevant times, the quantity of the works is subject to final site measurement to be conducted by both the plaintiff and the defendant.

In this regard, the defendant argues that neither the plaintiff nor the defendant has conducted a final site measurement to determine the extent of the work completed by the plaintiff.

The defendant maintains that payments were made to the plaintiff for the work performed. However, the defendant contends that, at all relevant times, the plaintiff failed to properly complete the work, which did not comply with the Bill of Quantities nor meet the defendant's specifications.

The defendant also argued that they repeatedly reminded the plaintiff to carry out the rectification works to the defendant's satisfaction and to fulfil their responsibilities as outlined in the Bill of Quantities. However, the plaintiff failed, refused, or neglected to perform the rectification work. Additionally, the defendant contended that the plaintiff is not entitled to the claimed amount and that, before filing this suit, the plaintiff never demanded payment for the work.

C. APPLICATION FOR SUMMARY JUDGMENT The application for summary judgment is governed by Order 14

Application by plaintiff for summary judgment (O. 14 r. 1)

Where in an action to which this rule applies a statement of claim has been served on a defendant and that defendant has entered an appearance in the action, the plaintiff may, on the ground that the defendant has no defence to a claim included in the writ, or to a particular part of such a claim, or has no defence to such a claim or part thereof except as to the amount of any damages claimed, apply to the Court for judgment against that defendant.

The Federal Court in the case of National Company for Foreign Trade v Kayu Raya Sdn Bhd 1984 1CLJ 283, set out the preliminary requirements of an application under O.14, which are as follows:

the defendant must have entered an appearance;

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

(iii) the affidavit in support must comply with the requirements of Rule 2 of O.14.

In National Company of Foreign Trade (supra), it was also held that if the plaintiff satisfies the above considerations, a prima facie case is established against the defendant, and the burden shifts to the defendant to show why the Court should not grant summary judgment against him.

In Segi Astana Sdn Bhd v Mesra Indah Jaya Sdn Bhd (2022) CLJU 1327, the High Court held that:

Law for Summary Judgement. [7] The applicable law concerning an Order 14 Rules of Court 2012 application is trite. My understanding of the applicable principles is summarized as follows: -

The application for a summary judgment application is based on the pleadings and the affidavit evidence presented by both the Plaintiff and the Defendant.

(ii) This Court should not enter judgment against the Defendant if it finds that the defence or issue or question in dispute between parties that ought to be tried or that there ought for some other reason to be a trial of the claim or part of the claim. This Court must analyse the affidavit evidence of both parties.

(iii) Generally, in the normal way, it is not appropriate for me to resolve conflicts of evidence on affidavit alone but where such statement or assertion, denial or dispute is unequivocal or lacking in precision or is inconsistent with undisputed contemporary documents or statements then I am duty-bound to reject them and enter judgment.

(iv) This power should be exercised by me in a very clear case where the defence and affidavit filed in opposition do not show any bona fide defence and there are no real issues to be tried.

If a Defendant even raises a single triable issue, it will not be a fit and proper case for summary judgment. [8] For a party to successfully obtain an order for summary judgment, it must be shown to Court that the Defendants have no defence to a claim.”

In Cempaka Finance Bhd v Ho Lai Ying & Anor (2006) 3 CLJ 544, the Federal Court held as follows: In the instant case, the Court of Appeal had put the burden on the plaintiff to prove his case in an O. 14 application. With respect, that could not be the correct proposition of law. In an application under O. 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 support must comply with r. 2 of O. 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 (National Company for Foreign Trade v. Kayu Raya Sdn Bhd folld). The Court of Appeal, in reversing the burden of proof, had misapplied the relevant principles relating to an application for summary judgment under O. 14 RHC. (para 4). (Emphasis added)

This Court finds that the plaintiff has met the requirements outlined above. Therefore, a prima facie case has been established against the defendant, who must now demonstrate to this Court that the case warrants going to trial.

PLAINTIFF’S ARGUMENTS The plaintiff, in its affidavit in support of this application for summary judgment, averred that initially the defendant engaged the plaintiff for the work for a project in Malaysia Building Society Bank Berhad (MBSB), Southkey, Johor Bahru (the first project) where the plaintiff had sent a Bill of Quantities and a variation dated 4.3.2020.

The defendant then, through a telephone call, informed the plaintiff to proceed with the installation work and engaged the plaintiff for another project in MBSB Perak (the second project). The defendant informed the plaintiff that the installation for the second project is essentially the same as that for the first project. The defendant paid the plaintiff RM47,418.00 as an advanced payment.

The plaintiff stated that the plaintiff issued a bill of quantities for the second project, and since the project is located in Perak and includes transportation costs, there is an additional expense added to the total bill of quantities.

The plaintiff will issue an invoice or progress claim to the defendant for the work completed. The defendant paid RM165,894.00 for the first project and RM60,000 for the second project. However, the plaintiff claims that a remaining balance of RM201,543.00 is still owed for the work performed.

The defendant claimed that all work in the first and second projects is solely governed by the bill of quantities. All work listed on the bill is based on measurements and plans approved by the defendant before any work began.

The plaintiff also contends that each piece of goods and equipment was determined based on the plaintiff’s measurements and plans, and approved by the defendant; all quantities are clearly listed in the bill of quantities.

The plaintiff also stated that during the work carried out by the plaintiff, the defendant never raised any objections or issues. Raising an objection now is simply an afterthought.

The plaintiff also stated that after the work was finished, the first and second projects immediately began their operations. However, the defendant failed to pay the remaining balance and has not raised any triable issue.

It is also the submission of the plaintiff that the defendant had not exhibited any evidence pertaining to its allegation/

THE DEFENDANT’S ARGUMENTS The affidavit in reply by the defendant opposed the application for summary judgment. The defendant averred that the plaintiff and the defendant did not agree to any variation of the work.

It is the defendant’s position that, at all relevant times, there was an agreement between the plaintiff and the defendant that the work quantity would be finalized through site measurement conducted jointly by both parties. To date, no such final site measurement has been performed. Additionally, the defendant states that it made payments to the plaintiff for the work completed. However, the plaintiff failed to finish the work as specified in the Bill of Quantities, and it was not completed to the defendant’s satisfaction.

According to the defendant, the defendant had orally reminded the plaintiff to attend to the rectification work to the satisfaction of the defendant and to complete its job in accordance with the Bill of Quantities, but the plaintiff had failed to do so. Additionally, the defendant denied receiving the purported variation order exhibit in the plaintiff’s affidavit. The defendant claimed that it has bona fide triable issues.

ANALYSIS AND FINDINGS OF THIS COURT As stated earlier, once the plaintiff has met the requirements under O.14 of the ROC 2012 for summary judgment, the burden shifts to the defendant to demonstrate that this case warrants going to trial.

This Court shall now state the following grounds why the defendant has failed to raise a triable issue.

Defendant's claim of not receiving any variation orders and letters from the plaintiff is merely a bare denial.

The defendant denied having accepted any variation order in exhibit A, letters from the plaintiff dated 25.11.2029 and 17.1.2020 in exhibit D, and the statement in exhibit E, did not deny having received exhibit B which contains the note ‘All quantity will subject to final site measurement’. This denial is a mere bare assertion, as the defendant has produced no evidence, and the defendant is using exhibit B to argue that the final site measurement is a condition, but it was not done. This Court is of the view that the defendant did not show any proof that it had raised any objection in relation to the site measurements required to be undertaken by the plaintiff, and the fact that payments had been made by the defendant shows that the variation orders and letters were duly received.

In HTC Global Services MSC Sdn Bhd v Kompakar Ebiz Sdn Bhd (2008) CLJU 419, Kang Hwee Gee J. (later COA Judge) held that: “It is clear from the affidavits of the parties that after having received those invoices on those two written contracts the defendant did not see it fit to lodge any complaint or disagreement on the items in the invoices until the suit was filed. 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] CLJU 358; [2006] 1 LNS 358; [2007] 4 AMR 327.(Emphasis added) 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. It is clear that in respect of the five invoices pertaining to the third contract no such objection had been lodged with the plaintiff until the suit is filed”.

The condition of final site measurement has been waived by the defendant through its conduct

As stated earlier, the defendant did not present any substantial and credible evidence except for a bare assertion. The plaintiff, on the other hand, provided a statement in exhibit E showing that the defendant had made nearly full payment for the first project, amounting to RM165,894.00, and some payment amounting to RM60,000.00 for the second project, in line with the progressive billings. This proves that the defendant did not protest at any material time that the final site measurement was not performed, and also supports the notion that the defendant waived the said condition of a final site measurement through conduct.

In Top Speed Holding Sdn Bhd v Conlay Construction Sdn Bhd (2011) CLJU 238, where Nallini Pathmanathan J. (later FCJ) decided that: Having perused and considered the same it is certainly a condition of the contract that requires compliance, but that does not detract from the fact that it may be waived. In any event even a condition precedent can be waived, albeit by consent or by conduct of the parties.

The defendant’s assertions are inconsistent with undisputed contemporary documents and statement

The defendant, in its pleading and affidavit, claimed that the projects were not completed by the defendant, did not conform to the Bill of Quantities, and were not satisfactory to the defendant. However, this claim is inconsistent with its actions, as it continued to make payments to the plaintiff. The payments made by the defendant also serve as evidence that at all material times, the defendant had duly received the documents exhibited in the plaintiff’s affidavit in support of this application.

The defendant also failed to provide any evidence to refute the plaintiff's assertion that the projects began operations immediately upon completion. Additionally, if the projects were indeed unsatisfactory, the defendant did not substantiate this with any evidence, such as photographs or proof that another contractor was hired to rectify the incomplete work. The defendant also claimed that they had raised the issue of the unsatisfactory work orally, which further suggests that the allegation is an afterthought. Therefore, this Court finds that the defendant’s allegations are mere assertions—unfounded, unsubstantiated, and inconsistent with the undisputed contemporary documents and statements.

This Court reiterates the principles in Segi Astana Sdn Bhd v Mesra Indah Jaya Sdn Bhd (supra) that:

(iii) Generally, in the normal way, it is not appropriate for me to resolve conflicts of evidence on affidavit alone but where such statement or assertion, denial or dispute is unequivocal or lacking in precision or is inconsistent with undisputed contemporary documents or statements then I am duty-bound to reject them and enter judgment. (Emphasis added)

The Court refers to the case of Bank Negara Malaysia v Mohd Ismail & Ors (1992) 1 CLJ 627, where the Supreme Court held that: “In our view, basic to the application of all those legal propositions, is the requirement under O. 14 for the Court to be satisfied on affidavit evidence that the defence not only has raised an issue but also that the said issue is triable. The determination of whether an issue is or is not triable must necessarily depend on the law arising from each case as disclosed in the affidavit evidence before the Court”.(Emphasis added)

Due to the reasons stated above, this Court found that the defendant had failed to raise a triable issue. Consequently, this Court believes that this case is suitable for summary judgment. Summary judgment was entered against the defendant with costs. Dated 20 February 2026 -sgd-SUHAILY BINTI SAMSUDIN JUDGE SESSIONS COURT JOHOR BAHRU JOHOR To the parties’ solicitors: For the plaintiff : Mr.Woon Wai King (Messrs S.K Song) For the third defendant : Ms.Vanusya a/p Joothymani (Messrs.Sham & Co)