Lampiran
Lampiran 9 dengan kos sebanyak RM3000/- dibayar kepada Pihak Plaintif.” 135 [19] Dissatisfied with the decision of the learned Sessions Court Judge, the Appellant appealed to the High Court by Notice of Appeal dated 27 April 140 2021 (Enclosure 1). [20] In another matter that came before me, Chan Lai Yoke & Anor v. ESS Engineering Sdn Bhd [2021] MLJU 2380; [2021] 1 LNS 1963; [2021] AMEJ 1842; [2021] MLRHU 1898 on a summary judgment application, I 145 had occasion to set out the law on summary judgment as follows: “Order 55 rule 2 of the Rules of Court 2012 provides that all appeals to the High Court shall be by way of re-hearing. The White Book on the Malaysian Civil Procedure 2021 Volume 1, page 812 at paragraph 55/2/1 150 states as follows: 6 In a re-hearing, a judge is not tasked to consider whether the lower court judge had exercised his discretion correctly or had properly considered the relevant material. He would consider the case as 155 if it came before him for the first time.” (Emphasis added) The application by the Plaintiff for summary judgment ……. was principally made pursuant to Order 14 rule 1 of the Rules of Court 2012, which 160 provides as follows: “Application by plaintiff for summary judgment (O. 14 r. 1) 165 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 170 damages claimed, apply to the Court for judgment against that defendant.” The law that an application for summary judgment should only be granted where a Defendant has no defence or if there are no triable issues to be determined at trial is settled, see the oft-quoted authority of Malayan 175 Insurance (M) Sdn Bhd v. Asia Hotel Sdn Bhd [1987] CLJ (Rep) 182; [1987] 2 MLJ 183, where the Supreme Court held that: “The underlying philosophy in the O. 14 provision is to prevent a plaintiff clearly entitled to the money from being delayed his judgment 180 where there is no fairly arguable defence to the claim. The provision should only be applied to cases where there is no reasonable doubt 7 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.” 185 In resisting an application for summary judgment His Lordship, Mohd Azmi SCJ in delivering his judgment on an application for summary judgment in Bank Negara Malaysia v. Mohd. Ismail Ali Johor & Ors [1992] 1 CLJ 627; [1992] 1 MLJ 400 (SC) said: 190 “The defence set up need only show that there is a triable issue….” [21] The Appellant in its written submissions (Enclosure 13) cited Bank Negara Malaysia v Mohd. Ismail Ail Johor (supra) and the Court of Appeal 195 authority of ES HVAC Sdn Bhd v. Miracle Asset Builder Sdn Bhd [2019] 1 LNS 209; [2019] 3 MLJ 485 for the trite principle that the Order 14 jurisdiction is only to be exercised in very clear cases. Reliance was also placed on the other oft-cited Court of Appeal authority of Noh Hyoung Seok v. Perwira Affin Bank Bhd [2004] 2 CLJ 64; [2004] 2 MLJ 203 for the same 200 principle set out in Bank Negara Malaysia v Mohd. Ismail Ali Johor (supra) and that it is not the function of the trial judge in an Order 14 application to delve into the merits of the case and decide whether the defendant is likely to succeed or fail. 205 [22] Learned counsel for the Appellant went on to cite the authorities of Banque de Paris et des Pays Bas (Suisse) SA v. de Naray [1984] 1 Lloyd’s rep 21 and Bhogal v. Punjab National Bank, Basna v Punjab National Bank [1988] 2 All ER 296 for the principle that an Order 14 application is not decided by weighing two affidavits and the correctness of 210 factual assertions cannot be decided in an application for summary judgment. 8 [23] The Appellant asserted that a meticulous examination of the documentary evidence must not be done and given the voluminous 215 documents presented to the Court in its affidavits, such an exercise “could” not be attempted by the Court at this stage as oral evidence must be led to explain the same (Enclosure 13, paragraphs 18 and 19). I think the learned counsel meant to assert that this Court should not attempt to carry out a meticulous examination of the documentary evidence laid before 220 the Court. [24] To the Appellant, the vital point is that the issue of how much incentives and discounts it is entitled to, is the issue that needs to be investigated further at trial and, therefore, the summary judgment ordered by the learned 225 Sessions Court Judge ought to be set aside (Enclosure 13, paragraphs 11 and 12). [25] However, the Supreme Court in Bank Negara Malaysia v Mohd Ismail Ali Johor & Ors (supra) speaking through His Lordship, Mohd Azmi 230 SCJ said: “Under an O. 14 application, the duty of a Judge does not end as soon as a fact is asserted by one party, and denied or disputed by the other on affidavit. Where such assertion, denial or dispute is equivocal, or 235 lacking in precision or is inconsistent with undisputed contemporary documents or other statements by the same deponent or is inherently improbable in itself, then the Judge has a duty to reject such assertion or denial, thereby rendering the issue as not triable. In our opinion, unless this principle is adhered to, a Judge is in no position to exercise his 240 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 9 whether they are triable. This principle is sometimes expressed by the statement that a complete defence need not be shown. The defence set up need only show that there is a triable issue.” (Emphasis added) 245 [26] It, thus behoves this Court not to fold its arms and shut its ears just because through the industry of the Appellant voluminous documents are presented to the Court. 250 [27] The Court bears in mind that the action is for goods sold and delivered with accounts rendered on a regular basis since 25 September 2014 and which ran for five years until September 2019. [28] It was clear that the Appellant never disputed taking delivery of all 255 the goods supplied by the Respondent. [29] Despite the diligence of the Appellant in exhibiting the voluminous documents, upon the invitation of the Court to the learned counsel for the Appellant to identify the incentives said to have been earned but not given, 260 the learned counsel sought to point out one example but this was credibly rebutted by the learned counsel for the Respondent, as the incentive said to be earned if payment was made within 30 days was shown to be paid beyond 30 days. 265 [30] Learned counsel for the Respondent pointed out that there were no contemporaneous documents seeking to claim any incentives not paid. I agree with the Respondent that the failure to do so coupled with the failure to reply to the two letters of demand dated 14 October 2019 (Enclosure 4, p182) and another dated 26 December 2019 would lead to the logical 270 10 inference that there is nothing to dispute. The appellant’s reply came only some nine months later after the first letter of demand with the caption “1st Reminder” followed by the second reminder issued two months later and this reply from the Appellant’s solicitors dated 14 July 2020 (Enclosure 7, p 837) was only raised in response to a pre-action letter taken out by the 275 solicitors for the Respondent dated 25 June 2020 (Enclosure 4, p 185). [31] The following excerpts of the judgment of the Court of Appeal in David Wong Hon Leong v. Noorazman Adnan [1995] 4 CLJ 155; [1995] 3 MLJ 283 are particularly pertinent to the facts of this case: 280 “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 285 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 [1986] 1 290 LNS 42; [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 295 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 300 11 us to consider is any evidence in corroboration of the promise'. (Emphasis supplied.) Earlier, in his judgment, he said, 'Now there are cases – business and mercantile cases in which the courts have taken notice that, in the ordinary course of business, if one man of business states in a letter to another that he has agreed to do certain things, the 305 person who receives that letter must answer it if he means to dispute the fact that he did so agree. …”. (Emphasis added) [32] In the circumstances, to borrow the words of His Lordship, Mohd. 310 Azmi SCJ in Bank Negara Malaysia v. Mohd Ismail Ali Johor & Ors (supra), I find the belated assertions, denial or disputes sought to be raised by the Appellant to be equivocal or lacking in precision and was inherently improbable in itself and it was my duty to reject such assertions or denial, thereby rendering the issue as not triable. 315 [33] In the upshot, I found no merits in the appeal by the Appellant and had it dismissed with costs. After hearing the parties on the issue of quantum of costs to be awarded, with the Respondent seeking costs of RM5,000.00 and the Appellant offering RM4,000.00, I had awarded costs of RM5,000.00 320 subject to allocatur, to the Respondent to be paid by the Appellant. 325 330 12 Dated: 13 January 2022 ( SU TIANG JOO ) Judicial Commissioner 335 High Court in Malaya Ipoh, Perak For Appellant : Syakira binti Abdul Khair 340 [Messrs WY Chan & Roy] For Respondent : Remyzen bin Moksin (together with Premjit Singh S/O Amrjit Singh) [Messrs Prem & Associates] 345 350 [Notice: This Grounds of Decision is subject to official editorial revision] 13 Headnotes 355 Contract – goods sold and delivered – running accounts for 5 years – failure to challenge accounts – failure to respond to demands for payments – summary judgment ordered 14 360 15