L.K. Insulation Engineering (M) Sdn Bhd v Apex Energy Sdn Bhd (WA-22C-76-10/2016)

An advocate and solicitor shall not accept any brief unless he is reasonably certain of being able to appear and represent the client on the required day.

An advocate and solicitor shall not ordinarily withdraw from an engagement once accepted, without sufficient cause and unless reasonable and sufficient notice is given to the client. 4 ... Rule 24. Advocate and solicitor to be ready for the day fixed for trial.

An advocate and solicitor shall make every effort to be ready for trial on the day fixed.

An advocate and solicitor may apply for postponement of a case fixed for hearing for good and cogent reasons only.

Except in an emergency, it is improper for an advocate and solicitor to apply for a postponement in the absence of counsel or the other side unless he has given the counsel concerned at least forty eight hours notice of his intention to make the application."(emphasis added) [8] Rule 6(a) requires of an advocate and solicitor not just to appear for a client on the day fixed for hearing of an application but to represent the client on the day fixed for the hearing and not to ask for a postponement save for a good and cogent reason. Rule 24(a) requires him to be ready for trial and that includes the hearing of an application as envisaged in Rule 24(b). To be ready would mean to proceed to represent the client and not to ask for a postponement of the hearing. 5 [9] There is also a need to give prior notice of 48 hours to the counsel concerned. In other words, a postponement of a case should be avoided like plague. The rule and norm should be that a case fixed will go on and that a postponement must be as rare as hens' teeth and rarer than rubies! [10] At any rate the reason given is not cogent enough: that of wanting to file a further affidavit. Generally only 3 affidavits are allowed for an application: an affidavit in support, an affidavit in opposition and a further affidavit in reply to that affidavit in opposition. Unless there are cogent reasons for affirming a further affidavit as in the documents that were sought to be referred to were not available previously or that what has been referred to in the last affidavit filed is a lie, courts generally would not allow further affidavits to be filed. Otherwise there would be no end to affidavits filed because, human nature being what it is, everyone wants to have the final and last word! Therefore if in an affidavit in reply there is more than a reply to the affidavit filed in opposition, I would disregard the new matters raised which should have been raised in the affidavit in support. [11] In any event the time for exhausting affidavits is over and whatever that the Defendant had hoped to say cannot derogate from what had been sworn as the truth in the affidavit of the Defendant to oppose the summary judgment application. 6 Project [12] The Plaintiff specializes in providing scaffolding installation/erection to its clients in various industries. The Defendant is one of a consortium of companies involved in the mega project known as the Sabah Ammonia-Urea (SAMUR) in Sipitang which is located approximately 150 km from Kota Kinabalu, Sabah, East Malaysia. Problem [13] The Defendant issued and handed to the Plaintiff, by fax and e-mail, their Purchase Order No. APEX/SAMUR/136/151109, dated 1.10.2015 ("Purchase Order") appointing the Plaintiff to provide ‘competent manpower, supervision and materials complete with PPE to carry out scaffolding works’ (“the services”) to assist the Defendant in their execution of the Defendant’s project. [14] The Defendant’s Purchase Order was signed by the Defendant’s authorised signatory, En. Mustafa Bin Ali who is the Defendant’s Vice President and Director. The scope of the Plaintiff’s contractual obligations pursuant to the Purchase Order may be summarised as follows: 7 1. To install/erect scaffolding at locations designated by the Defendant and based on and guided by the Defendant’s sketch plans/drawings;

At the Defendant’s request, to provide workforce/manpower to modify/vary the frameworks scaffolding installed previously;

To supervise, monitor and verify the safety of the frameworks scaffolding that has been installed; and 4. Rental of scaffolding that has been installed for the Defendant; [15] The fees payable for the services provided by the Plaintiff are based on the scale of rates listed in the Purchase Order and are, inter alia, as follows:

"External Scaffolding with Tower type" wherein the scale agreed upon depends on the height involved and calculated in units price per cubic meters (“M3”);

"External Scaffolding with Hanging / Suspended Type" wherein the scale agreed upon depends on the height involved and calculated in unit price per M3;

"Scaffolding Rental" applies after 30 days of erection of the scaffolding and is calculated in unit price of RM0.35 per M3 per day;

"Scaffolding Rental Green Tag Inspection During Rental Period" applies per tag per week after 30 days of scaffolding erection and calculated in unit price of RM250.00 for every Green Tag per week 5. The scale for payments for Manpower Supply/Standby are dependent on the following: i) Categories of workers Plaintiff ii) Normal working hours iii) Overtime iv) On Sunday v) Public holidays 6. Other terms: i. Scale payment are excluding of GST; ii. Claims must be paid within 7 days from the date of invoice issued; and 9 iii. Late payment interest is charged at a rate of 1.5% per month. [16] The Plaintiff narrated that in performance of the contract it did the following:

Installed/erected the Plaintiff’s Scaffolding frameworks for the Defendant’s Project based on and guided by the sketch plans (drawings) that was provided by the Defendant;

Modified/varied and/or amended the Scaffolding framework, that was originally installed, in accordance to the directions and amended sketch plans as provided by the Defendant;

Supplied workforce/manpower to carry out the modifications/variations to the scaffolding works at the request of the Defendant. [17] What is more important from the point of a summary judgment application is that the Defendant and or their representatives, upon being satisfied with:

The installation/erection of the scaffolding works;

The modifications/variations to the scaffoldings works; and

The supply of workforce/manpower approved and signed off on the relevant supporting documents such as:

the Scaffolding-Erection Job Order,

(ii) the Scaffolding Job Completion Certificate;

(iii) the Photo Report – Job Completion Certificate; and

(iv) the Scaffolding-Manpower Supply to confirm that the Plaintiff has duly completed their job. [18] Copies of all the supporting documents, duly approved and signed off by the Defendant were attached together with the Plaintiff’s Invoices and submitted to the Defendant for payment. [19] What is important here is that the Defendant did not at any material time after receiving the Plaintiff’s Invoices raise any query or objection. [20] The Plaintiff had collated and categorized these relevant documents, consisting of the Invoices, the Scaffolding-Erection Job Order, the Scaffolding Job Completion Certificate, the Photo Report-Job Completion Certificate, the Scaffolding-Manpower Supply and the Defendant’s sketch plan/drawings are found in the Affidavit in Support, Exhibit B and Exhibit G as follows: 11 1. Invoices for Scaffolding installation/erection and their supporting documents may be found at pages 11 to 32, 36 to 51, 55 to 74, 81 to 109, 112 to 124, 128 to 152, 160 to 188, 193 to 205, 212 to 237, 238 to 265, 269 to 298, 303 to 312, 313 to 326, 335 to 359, 374 to 378, 379 to 393, 404 to 433, 434 to 452 and 453 to 470 of Exhibit B;

Invoices for Scaffolding rental and their supporting documents may be found at pages 52 to 54, 153 to 156, 206 to 209 and 327 to 330 of Exhibit B and pages 481to 488 and 489 to 492 of Exhibit G; and 3. Invoices for the supply of workforce/manpower and their supporting documents may be found at pages 33 to 35, 75 to 78, 79 to 80, 110 to 111, 125 to 127, 157 to 159, 189 to 192, 210 to 211, 266 to 268, 299 to 302, 331 to 334, 360 to 365, 366 to 373 and 394 to 403 of Exhibit B. [21] Despite receiving the Plaintiff’s Invoices, the Defendant failed, refused or neglected to make payments that were due to the Plaintiff for the services rendered. 12 [22] Confronted with this wall of silence, the Plaintiff instructed its former solicitors to issue a notice of demand dated 11.7.2016 to the Defendant to claim for all monies due and owing in the sum of RM 2,222,723.18 as at 11.7.2016 ("the Plaintiff’s Notice") [23] This met with a response as most lawyer's letter would. Silence would be unacceptable in the light of such a claim to the tune of RM2.2million. The Defendant, vide letter dated 15.7.2016 addressed to the Plaintiff’s former solicitors, replied informing that they were in the midst of verifying the Plaintiff’s claim and requested for details to ease verification and confirmation by the Defendant as the Defendant allegedly claimed that Plaintiff’s and Defendant’s records are in conflict. [24] The Plaintiff’s former solicitors responded to what seemed to be a reasonable request. By their letter dated 25.8.2016 they submitted and presented to the Defendant a hardcover binder of all supporting documents totaling 460 pages in the form of the Invoices, the Scaffolding-Erection Job Order, the Scaffolding Job Completion Certificate, the Photo Report-Job Completion Certificate and the Scaffolding-Manpower Supply by hand which was duly acknowledged receipt by the Defendant on 26.8.2016. 13 [25] After receiving the detailed supporting documents from the Plaintiff’s former solicitors, the Defendant on 30.8.2016 made a payment of RM219,930.71 to the Plaintiff without raising any further query. Prayers [26] The Plaintiff’s claim against the Defendant in the summary judgment application the sum of RM2,915,434.66, includes the sums paid by the Plaintiff to the Royal Malaysian Customs Department for Goods and Services Tax (GST) on the Invoices issued by the Plaintiff to the Defendant's despite the Defendant’s failure, refusal and neglect to pay the Plaintiff’s Invoices. [27] In summary, the Plaintiff claims against the Defendants is for the aggregate amount of RM2,915,434-66 divided into 3 the components: a. Cost of installation and opening (erection and dismantle) scaffolding RM1,266,959.17 b. The cost of renting scaffolding until 5 September, 2016 RM1,592,581.69 c. Labor cost for the work of the variation and amendment of the original framework scaffolding RM 55,893.80 Total: RM2,915,434.66 14 Principles [28] I agree with learned counsel for the Plaintiff/Applicant that the following trite principles apply in deciding this summary judgment application:

Once the Plaintiff has fulfilled the following 3 preliminary requirements as laid down by Order 14 rules 1(1) and 2(1) of the Rules of Court 2012, namely:

The Writ and Statement of Claim has been served on the

(ii) The Defendant has entered an appearance; and

(iii) The Plaintiff’s deponent has affirmed an affidavit verifying the facts on which the Statement of Claim is based and the belief of the Plaintiff’s deponent that there is no defence by the Defendant to the claim the burden then shifts to the Defendant to resists Enclosure 6 by satisfying this Honourable Court under Order 14 rules 3(1) and 4(1) that there is an issue or question which ought to be tried. 15 2. The jurisprudence submitted to above is clear from the Rules of Court 2012 and the following 2 Federal Court cases:

Order 14, Rules of Court 2012, TAB 1 Plaintiff’s Bundle of

(ii) National Company for Foreign Trade v Kayu Raya Sdn Bhd [1984] 2 MLJ 300; and

(iii) Cempaka Finance Bhd v Ho Lai Ying (trading as KH Trading & Anor) [2006] 2 MLJ 685 at pages 689 and 690.

In the case of Bank Negara Malaysia v Mohd Ismail & Ors [1992] 1 MLJ 400, the Supreme Court at page 408 of the report, held on the determination of whether an issue is or is not triable as follows: “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 has not only raised an issue but also that the issue is triable. The determination of whether an issue is or is not triable must necessarily depend on the facts or the law 16 arising from each case as disclosed in the affidavit evidence before the court. ... 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 in an affidavit. Where such assertion, denial or dispute is equivocal or lacking in precision or is inconsistent with undisputed contemporary documents or other statements by the same deponent, or is inherently improbable in itself, then the judge has a duty to reject such assertion or denial, thereby rendering the issue not triable” (emphasis added)

Further, in the case of Suppuletchimi v Palmco Bina Sdn Bhd [1994] 2 MLJ 368, the Court held at page 382 of the report as follows: “The crucial question the court would have to ask itself in applications under O 14 or O 18 r 19(1)(a) – (d) is first, whether the piece or pieces of evidence 17 essential to make out a reasonable prima facie cause of action or a prima facie triable issue of fact are of the nature such that they are adducible by affidavit evidence; and secondly – if the answer to this question is in the positive – whether such essential prima facie evidence had been so adduced in the supporting affidavits. Such affidavits ought not to contain bare averments but must condescend or come definitely into particulars for serious argument such that they are sufficient to satisfy the court that there is a reasonable prima facie cause of action or a triable issue or issues of fact or law in the defence as the case may be.” (emphasis added) [29] I find merits in the submission of learned counsel for the Plaintiff that the matters raised by the Defendant in the Defendant’s Affidavit in Reply are vague and bare averments without condescending into particulars or adducing any evidence in support of their averments. There was no Statement of Defence filed by the Defendant. [30] In paragraphs 7, 9, 10, 12, 13 and 15 of the Affidavit in Opposition, the Defendant appears to be taking the stand that there is no contract 18 entered into between the Plaintiff and the Defendant and therefore the Plaintiff’s claim against the Defendant is frivolous, vexatious and scandalous. [31] The Defendant’s averments in these paragraphs are as follows:

25.1 “Saya juga telah dinasihati oleh Peguamcara saya dan saya sesungguhnya percaya bahawa pada setiap masa yang material, Plaintif tidak mempunyai apa-apa kontrak, liability, duty of care dan atau tanggungjawab secara terus kepada Plaintif untuk membolehkan Plaintif mendapatkan ganti-rugi atau pampasan daripada Defendan” – paragraph 7 Affidavit in

25.2 “Saya menegaskan dan tidak bersetuju perenggan 7 Afidavit Sokongan bahawa Defendan telah memberi arahan Plaintif untuk melakukan pesanan pembelian untuk membantu Defendan dalam perlaksanaan Projek Defendan” – paragraph 9

25.3 “Defendan pada setiap masa yang material adalah tidak memberi apa-apa arahan rasmi atau surat tawaran kepada Plaintif untuk perkhidmatan seperti yang terkandung di dalam 19 perenggan 8 (a) (b) (c) (d) Afidavit Sokongan” – paragraph 10

25.5 “Tuntutan Plaintif ini juga suatu yang mengaibkan dan telah mengganggu dan mencemarkan imej Defendan sebagai Syarikat Perkhidmatan Kejuruteraan Bertauliah sedangkan pada setiap masa yang material, Plaintif tidak pernah melantik Defendan untuk melakukan apa-apa kerja sekalipun” – paragraph 12 Affidavit in Reply;

25.6 “Saya merujuk kepada perenggan 9, 10 dan 11 dan menegaskan tidak bersetuju dengan perenggan tersebut kerana pihak Plaintif tidak mempunyai tanggungjawab kontrak dan tanggungjawab professional kepada pihak Defendan” – paragraph 13 Affidavit in Reply; and 25.7 “Saya juga tegaskan sekali lagi bahawa Plaintif tidak sekali-kali dilantik oleh Defendan dan tidak mempunyai apa-apa nexus atau pertalian secara kontrak atau tort terhadap pihak Plaintif” – paragraph 15 Affidavit in Reply. [32] The Defendant’s averments above appear hollow and totally unconvincing as the Defendant had not explained away the various 20 documents furnished by the Plaintiff following the request of the Defendant for substantiating the Plaintiff's claim after the Defendant received the Plaintiff's Letter of Demand. [33] The Defendant’s attempt to deny the existence of a contract between the Plaintiff and the Defendant is not supported by the contemporaneous documents. A Defendant who has no contact or contract whatsoever with the Plaintiff would be vigorously and vehemently denying the claim to the colossal sum of RM2.2 million. The Defendant would naturally be horrified and hasten to lodge a police report. It would be nothing short of the Plaintiff trying to cheat the Defendant into parting with RM2.2 million on fabricated or forged documents. [34] I can do no better than to quote from the Court of Appeal's case of David Wong Hon Leong v Noorazman Adnan [1995] 4 CLJ 155 at p 159 as follows: "During argument, we registered our surprise at the learned Judge’s reluctance to enter judgment for this sum of RM100,000. After all, the appellant had failed to respond to the letter of 17 December. If there had never been an agreement as alleged, it is reasonable to expect a 21 prompt and vigorous denial. But, as we have pointed out, there was no response whatsoever from the appellant. In this context, we recall to mind the following passage in the judgment of Edgar Joseph Jr. J. in Tan Cheng Hock v Chan Thean Soo [1987] 2 MLJ 479-487: In Wiedemann v. Walpole [1891] 2 Q.B. 534, 537 an action for breach of promise of marriage, it was held, that the mere fact that the defendant did not answer letters written to him by the plaintiff in which she stated that he had promised to marry her, was no evidence corroborating the plaintiff’s testimony in support of such promise. Lord Esher M.R., in his judgment, remarked, Here, we have only to see whether the mere fact of not answering the letters, with nothing else for us to consider is any evidence in corroboration of the promise.’ (Emphasis added). Earlier, in his judgment, he said, ‘Now there are cases - business and mercantile cases in which the Courts have taken notice that, in the ordinary course of business, if one man of business states in a letter to another that he has 22 agreed to do certain things, the person who receives that letter must answer it if he means to dispute the fact that he did so agree. (The emphasis is ours.)" [35] On the contrary, the Defendant made some part payments after receiving the voluminous file of documents substantiating the Plaintiff's claim. If there is no contract the Defendant would be foolhardy to pay towards the sum claimed. If the contract was mistakenly with another corporate entity, one would have expected the Defendant to say so. [36] To put it mildly, the Defendant is masquerading in misinformation as the Defendant's stand goes against the contemporaneous documents in this case such as the Purchase Orders, the Invoices, the Scaffolding-Erection Job Order, the Scaffolding Job Completion Certificate, the Photo Report-Job Completion Certificate and the Scaffolding-Manpower Supply. It would be stretching to incredulity to suggest that the details of all the work and services rendered are a figment of the Plaintiff's invidious imagination; an attempt to defraud the Defendant! [37] The deponent of the Defendant’s Affidavit in Reply is one En. Rashid Ibrahim. En. Rashid Ibrahim is the Defendant’s Project Director and also the individual who signed the Defendant’s letter dated 15.7.2016 (page 23 477, Exhibit LKS-D, Affidavit in Support) replying to the Plaintiff’s former solicitor’s notice of demand dated 11.7.2016 (page 475 and 476 Exhibit LKS-C, Affidavit in Support). [38] In the Defendant’s letter dated 15.7.2016, En. Rashid Ibrahim, inter alia, replied as follows: “We wish to inform your goodselves that we are in the midst of verifying the above said amount with our account record. As our record does not reflect the same amount as claimed and demanded, it would be appropriate for your client to provide us with the details. Kindly inform your client that this matter pending verification and we shall let you know when everything is in order. We look forward for your cooperation in resolving this matter amicably.” [39] I must say that such a reply is both candid and courteous. It is a natural response from someone who had received the benefit of the work done and services rendered to want to ascertain the correct amount owing. It would of course shore up tremendous credibility if the Defendant would follow up descending to details as to where the discrepancies and disparities lie. To make a reverse turn-around of saying that there is no contract at all with the Plaintiff is inherently incredible! 24 [40] The Defendant in its letter dated 15.7.2016 clearly had acknowledged the contract between the Plaintiff and merely asked for supporting documents to verify the Plaintiff’s demand for payment. [41] After receiving the hardcover binder of supporting documents totaling 460 pages from the Plaintiff’s former solicitors, the Defendant made a part payment to the Plaintiff in the sum of RM219,930.71 on 30.8.2016 (page 479 Exhibit LKS-F, Affidavit in Support). [42] Nowhere in the Defendant’s letter dated 15.7.2016 did the Defendant raise any of the matters raised in paragraphs 7, 9, 10, 12, 13 and 15 of the Defendant’s Affidavit in Opposition. [43] The Defendant’s averments in the Affidavit in Opposition are afterthoughts and not bona fide. [44] I agree with the Plaintiff that the Defendant is estopped from asserting that there is no contract, no instruction to proceed with the works and no confirmation of the completion of the work done for the following reasons:

The Defendant has not denied issuing the Purchase Orders to the Plaintiff.

The Defendant has not denied receiving the 39 Invoices issued by the Plaintiff. In fact the Defendant has not, anywhere in the Defendant’s Affidavit in Opposition, answered the Plaintiff’s averment in paragraph 15 of the Affidavit in Support that the 39 Invoices were sent by the Plaintiff to the Defendant from time to time. The Defendant’s failure to answer or reply must be treated as an admission. [45] It is the kind of silence that is deafening. When speech is expected as in an admission, denial or disputing the amount claimed, then that silence is damning; and damaging to the Defendant's case. [46] Learned counsel for the Plaintiff called in aid the case of Ng Hee Thoong & Anor v Public Bank Bhd [1995] 1 MLJ 281, where at page 286 of the report, the Court held that: “Now, it is well settled principle governing the evaluation of affidavit evidence that where one party makes a positive assertion upon a material issue, the failure of his opponent to contradict it is usually treated as an admission by him of the fact so asserted”. [47] The 39 Invoices clearly provide that “Any complaint regarding to this invoice should be lodged within (7) days from the date hereof”. After having 26 receiving the 39 Invoices, the Defendant is now estopped from disputing the Plaintiff’s 39 Invoices. [48] The Defendant has also not, in the Defendant’s Affidavit in Opposition, replied to the Plaintiff’s averments at paragraphs 17 and 22 of the Affidavit in Support that the Plaintiff sent Statement of Accounts to the Defendant. The Defendant’s failure to reply to the Plaintiff’s positive averment must be deemed as an admission that the Defendant did in fact received the Plaintiff’s Statement of Accounts as enunciated in Ng Hee Thoong’s case (supra). [49] The Plaintiff’s Statement of Accounts, which can be found at page 476 of Exhibit C and pages 480 and pages 493 to 494 of Exhibit G, Affidavit in Support, also contains the remark “Any discrepancy in this statement must be reported to us writing within 10 days”. The Defendant is now estopped from disputing the contents of the Plaintiff’s Statement of Account. [50] The Defendant has failed to reply to paragraph 15 of the Affidavit in Support where the Plaintiff made a positive averment that the Defendant had duly approved and signed off on all documents forming the contemporaneous documents in this case such as the Scaffolding-Erection 27 Job Order, Scaffolding-Job Completion Certificate, Photo Report-Job Completion Certificate and Scaffolding-Manpower Supply. [51] The Defendant did not contemporaneously dispute the Plaintiff’s claim, on all or any of the alleged grounds raised in the Defendant’s Affidavit in Support, upon receiving the Plaintiff’s former solicitor’s letter dated 11.7.2016 attaching the Plaintiff’s Statement of Account and demanding for the payment of RM2, 222,723.18 (page 475 to 476, Exhibit C). [52] I could not agree more with the Plaintiff's learned counsel that, in fact, the contemporaneous conduct of the Defendant shows that the Defendant, vide their letter dated 15.7.2016 (page 477, Exhibit D, Affidavit in Support), requested from the Plaintiff’s former solicitors for supporting documents on the alleged ground that the Defendant’s records did not reflect the same amount that was being claimed by the Plaintiff. [53] The Defendant after being given a hardcover binder totalling 460 pages of Invoices and the Scaffolding-Erection Job Order, Scaffolding-Job Completion Certificate, Photo Report-Job Completion Certificate and Scaffolding-Manpower Supply supporting documents certified by the Plaintiff’s former solicitor’s vide their letter dated 25.8.2016 (page 478, 28 Exhibit E, Affidavit in Support) did not dispute any of the documents but made a part payment of RM219,930.71 to the Plaintiff (page 479, Exhibit F, Affidavit in Support). Human nature being what it is, we tend to act consistent with what we believe to be true. The Defendant making part payment after receipt of the documents asked for must be contextually consistent with admission of the amount claimed. [54] The estoppel principle applies in a myriad of situations being a doctrine of wide utility and according to the Federal Court case of Boustead Trading (1985) Sdn Bhd v Arab-Malaysian Merchant Bank Bhd [1995] 3 MLJ 331, at pages 339, 344 and 345, it was held: “It is common ground that the appellant did not make any complaint about any of the invoices thus indorsed and sent by the respondent to it within the period of 14 days prescribed by the endorsement. Neither did the appellant make any contemporaneous challenge as to the right of the respondent to impose the 14-day period by way of the endorsement. It is also not in issue that the appellant, without raising any question on either of these points paid the respondent on several of the invoices. However, the appellant refused to make payment on about 20 invoices sent in by the respondent and these are the only ones that form the subject matter of the litigation between the parties. 29 ... The time has come for this court to recognize that the doctrine of estoppel is a flexible principle by which justice is done according to the circumstances of the case. It is a doctrine of wide utility and has been resorted to in varying fact patterns to achieve justice. Indeed, the circumstances in which the doctrine may operate are endless. ... We would add that it is wrong to apply the maxim 'estoppel may be used as a shield but not a sword' as limiting the availability of the doctrine to defendants alone. Plaintiffs too may have recourse to it. The true nature of the doctrine in this context is that stated by Lord Russell of Killowen in Dawsons Bank v Nippon Menkwa Kabushiki Kaisha LR 62 IA 100 at p 108: Estoppel is not a cause of action. It may (if established) assist a plaintiff in enforcing a cause of action by preventing a defendant from denying the existence of some fact essential to establish the cause of action, or (to put it in another way) by preventing a defendant from asserting the existence of some fact the existence of which would destroy the cause of action." 30 [55] The averment that there is no contract is nothing but a sham. No useful purpose can be served for going for trial. There are no circumstances in this case which ought to be investigated further by this court in a full trial. The factual matrix of this case militates against any necessity of going for trial. It would be a waste of time and resources of the Court for a case as classically suitable for summary judgment as this case. [56] The contemporaneous documentary evidence in the context of this commercial transaction are just overwhelming and no pretense should be allowed to obfuscate the obvious. Pronouncement [57] For all the reasons given above I have no hesitation in granting the summary judgment prayed for together with interest and costs. [58] Learned counsel for the Plaintiff was gracious and accommodating in accepting interest at the usual 5% per annum instead of 1.5% contractual interest per month. [59] This Court therefore allowed judgment to be entered with interest at the rate of 5% per annum from the date of writ to realization and costs of RM5,000.00. 31 [60] At the request of the Defendant and with the consent the Plaintiff, this order and judgment would not be enforced until after the expiry of 21 days from the date of the order and judgment. Dated: 30 May 2017. - signed - Y.A. LEE SWEE SENG Judge Construction Court High Court Malaya For the Plaintiff : M.Vinoben (Messrs Tay L.E & Co) For the Defendant : Shaharudin Ali together with Mohd Khairul Azam (Messrs Adzly & Co) Date of decision: 27 January 2017.