Lu Strong International Sdn Bhd v Petrojet Asia Sdn Bhd (12AC-7-09/2015)

1.

CHENG MONG HEE

ANTHONYSAMY A/L SAVARIMUTHU (I/C NO: 480114-05-5157) ... DEFENDANTS THE JUDGMENT OF Y.A. TUAN LEE SWEE SENG [1] This is an appeal by Appellant/First Defendant ("D1")) to this Court by a Notice of Appeal dated 7 September 2015 (pages 1-3 Record of Appeal, Vol.1) against the decision of the Sessions Court Judge dated 26 August 2015, wherein the Sessions Court Judge allowed the Respondent’s/Plaintiff’s (“Plaintiff's”) application for leave to record summary judgment (hereinafter referred to as the “Plaintiff's Application”) (pages 4-6 and 7-8 Record of Appeal, Vol. 1). Preliminaries [2] D1 submitted that the Sessions Court Judge erred by failing to take into consideration the chronology of the case as well as the various documents which show that there are disputes and triable issues which can only be resolved by way of a full trial. 3 [3] D1 had set out in its written submission the following chronology of the case:

The Plaintiff commenced proceedings on 2 September 2014 by filing the Writ dated 2 September 2014 and the Statement of Claim dated 27 August 2014 against 3 Defendants (pages 11-18 Record of Appeal, Vol. 1).

The Plaintiff’s Solicitors did not serve or notify the D1's Solicitors although they had knowledge that the said Solicitors were acting on behalf of D1.

The Plaintiff’s Solicitors obtained a Judgment In Default of Appearance dated against D1.

Upon D1 having knowledge of the same the D1 applied to the Sessions Court to set aside the Judgment In Default and the Sessions Court dismissed the said application to set aside the Judgment In Default.

D1 then appealed to the High Court and the appeal was allowed by consent and the matter was sent back to the Sessions Court.

The Plaintiff, without leave of the Sessions Court, amended the Statement of Claim and served the same on the D1’s Solicitors. 4

The Sessions Court allowed the Plaintiff's Application for leave to record summary judgment against D1 and D1 then appealed to this Court against the said decision. [4] Looking at the chronology of events as narrated, I cannot see how they are relevant to this present application of the Plaintiff for summary judgment against D1 other than by way of providing background context. As for the amendments without leave of Court, learned counsel for D1 had later admitted that the Amended Statement of Claim had been endorsed by the Court on 16 April 2015 and that it had been subsequently served on D1's solicitors on 21 April 2015. The amendment was made pursuant to O 20 r 3(1) Rules of Court 2012 ("ROC"). In the event D1 is aggrieved by the amendment, it should have applied to the Court to disallow the amendment under O 20 r 4 ROC but no such application had been made. In that sense I do not find the Table of Comparison of the changes effected by the amendments helpful or relevant in the comparison done to the various paragraphs of the Statement of Claim before and after amendment with respect to paragraphs 2, 4, 5, 6, 8, 15. Clearly there was a mistake in the description of the Plaintiff and D1 with respect to Plaintiff as Sub-Contractor and that it was D1 that had obtained a contract for construction from Jabatan Kerja Raya. 5 [5] In any event the Defendants including D1 could file their Amended Defence and so it cannot be said that any serious prejudice had been caused. Having disposed of the preliminaries, this Court shall proceed the substantive grounds of appeal from the decision of the Sessions Court in granting the Plaintiff summary judgment against D1. Pleadings [6] By the Amended Statement of Claim the Plaintiff had claimed for the payment of RM300,000.00 being agreed compensation for termination of contract, interest at the rate of 8% per annum from 25 June 2014 to the date of judgment and interest at the rate of 5% per annum from date of judgment to the date of full realization. [7] In the Amended Statement of Claim the Plaintiff had pleaded the following facts:

The 2nd and 3rd Defendants ("D2 and D3") had arranged for D1 to appoint the Plaintiff as the Sub-Contractor for 10% of the Sub-Contract works.

On 4 June 2012 a Sub-Contract was executed between the Plaintiff and D1. 6

The Plaintiff paid D2 and D3 a sum of RM300,000.00 being the finders’ fee and D2 and D3 agreed to refund the said sum in the event the Sub-Contract works did not take off 60 days from the date of the Official Receipt for the payment of the finders’ fee.

The Plaintiff gave notice of termination of the Sub-Contract by letter dated 22 January 2014.

D1 by letter dated 3 March 2014 agreed to the mutual termination and agreed to make payment of RM300,000.00. [8] D1 by its Statement of Defence had pleaded the following defences and in the Affidavits in Reply had raised the following issues:

There are 2 conflicting Statements of Claim with contradicting facts as submitted above.

The capacity of the parties are not clear and requires clarification.

There is no final agreement between the parties as the same was varied.

The letter dated 26 June 2014 is a without prejudice letter and ought not to have been adduced by the Plaintiff.

The Plaintiff's Solicitors' letters dated 11 June 2014 and 2 July 2014 are contradicting with the Plaintiff's claim. 7 Whether there is a triable issue of the capacity of the parties [9] Learned counsel for D1 pointed out that in the Original Statement of Claim it was stated as the Sub-Contractor, where the Plaintiff had awarded a Sub-Contract to D1. However, in the Amended Statement of Claim D1 was the one who awarded the Sub-Contract to the Plaintiff. The capacities of the parties were stated differently at 2 different times. [10] May I state the obvious here, which is this, that amendments are allowed to be made where there has been a genuine mistake on stating the description of the parties. Here the mistake was instead of stating the Plaintiff was the Sub-Contractor, it had mistakenly stated D1 to be the Sub-Contractor. Clearly from the Sub-Contract parties are left on no doubt as to who is who in the contract. This is the kind of error where no one should capitalise on it and so justifying a full trial. [11] As can be seen from the Sub-Contract Agreement dated 4 June 2012 at pages 138-151 of the Record of Appeal Vol 2, the Plaintiff is referred to at page 138 as the Sub-Contractor and D1 as the Main Contractor. It was further stated at Recital A that: "The Main Contractor has secured a contract to undertake the contract works in respect of the project known as "Cadangan Projek 8 Menaik Taraf Jalan Morak-Kebakat Cabang Empat, Tok Mek Ngah, Fasal 2 (Reka dan Bina) (hereinafter referred to as "the Project"). The owner of the Project is Jabatan Kerja Raya, Government of Malaysia (hereinafter referred to as "the Client").” If there could be a doubt as to any mistaken identity the Sub-Contract Agreement further spelt out in Recital B as follows: "The Main Contractor is desirous of appointing and the Sub-Contractor hereby accepts the appointment by the Main Contractor to carry out the works in respect of the Project (the "Contract Works" (as sub-contractor) as authorized and stipulated under the Sub-Contract." [12] Again at paragraph 5 or the Amended Statement of Claim (page 20 Record of Appeal, Vol. 1), the Plaintiff had pleaded that D2 and D3 had arranged for D1 to appoint the Plaintiff as the Sub-Contractor. D1 at paragraph 7 of the Statement of Defence (page 26 Record of Appeal, Vol. 1) had denied having knowledge of any arrangement with D2 and D3. That of course was something that D1 was at liberty to plead. The question is: does that have a jot on the Plaintiff's claim which is based on a contract by D1 to pay the Plaintiff' the agreed sum of RM300,000.00 after the mutual termination of the Sub-Contract? I cannot see how the mere denial by D1 9 could justify the need to proceed to trial as the fact of a Sub-Contract having been entered into between the Plaintiff and D1 is what is relevant and not who was instrumental in arranging for this Sub-Contract to be entered into. [13] D1's learned counsel drew the Court's attention to paragraph 7 of the Amended Statement of Claim (page 20 Record of Appeal, Vol. 1), where the Plaintiff had pleaded that in consideration of the arrangement as stated above, the Plaintiff paid the D2 and D3 a finder's fee of RM300,000.00, which D2 and D3 agreed to return in the event the Sub-Contract works did not proceed. [14] It appears that the Sessions Court Judge had misconceived the facts as at paragraph 4 of the Grounds of Judgment (page 6 Supplementary Record of Appeal), when the Sessions Court Judge stated that, “Atas lantikan, Plaintif telah membayar RM300,000.00 kepada Defendan Pertama sebagai finders’ fee yang merupakan 3.5% daripada kos keseluruhan pembinaan bagi projek tersebut”. As this appeal is by way of a re-hearing this Court need not have to agree with the Sessions Court Judge on this particular finding which is contrary to the Plaintiff's pleaded case. However, as I have said before, between the Plaintiff and D1, the 10 question is whether D1 had also agreed to pay the Plaintiff this sum of RM300,000.00 and for that, this Court must be satisfied if there is a concluded contract as pleaded for such a payment that is borne out by the documents referred to in the Plaintiff's affidavits. [15] Further, it was further highlighted that at paragraph 5 of the Grounds of Judgment (page 6 Supplementary Record of Appeal), the Sessions Court Judge stated that, “Resit Rasmi tersebut menyatakan persetujuan Defendan Kedua dan Ketiga bahawa bayaran finders’ fee tersebut akan dikembalikan kepada Plaintif sekiranya projek tersebut tidak dapat dilaksanakan di dalam tempoh 60 hari dari tarikh penerimaan bayaran finders’ fee”. [16] Moreover, it was submitted that the Official Receipt at page 152-153 Record of Appeal, Vol 2, is executed by D2 and D3 and that these D2 and D3 do not have any relationship D1 and so the question was raised: so why is the payment of the finders’ fee related to D1? This question has not been answered and can only be answered with the D2 and D3 giving oral evidence during the full hearing of this matter. [17] I must be pardoned for not been able to appreciate this line of argument. A trial is not to be had for the purpose of satisfying our curiosity 11 of some intriguing inquiries. Here, there is no need for one to know why D1 had agreed to pay RM300,000.00 to the Plaintiff for payment which the Plaintifff had paid to D2 and D3 now that the contract between the Plaintiff and D1 had been mutually terminated. It had not been pleaded that there had been fraud or coercion or misrepresentation and there had been no suggestion that there had been no consideration for the contract. [18] It was further argued by D1's learned counsel that in the Official Receipt it is stated that the works are to be implemented within 60 days from the date of payment of the finders’ fee. However, in the Sub-Contract, there is no mention of any time period for the commencement of works (pages 152-153 Record of Appeal, Vol 2). By reason thereof the question was raised by D1: on what basis is D2 and D3 able to specify the time period? D1 further said that the role of D2 and D3 is important as there are no documents or Affidavit evidence by D2 and D3. By reason thereof, it was argued, a trial ought to be held to ascertain the role of D2 and D3. [19] Again I fail to see the rationale for a trial merely because D2 and D3 had chosen not to file any application and affidavit to set aside the judgment in default entered by the Plaintiff against D2 and D3. 12 [20] Learned counsel for D1 further asked: Is the Plaintiff’s claim about the refund of the finder's fee? It was argued that this is a triable issue that can only be resolved by a trial as the Plaintiff is claiming RM300,000.00 from D1 as well as from D2 and D3. [21] However, as can be seen from the Amended Statement of Claim at page 17 of Record of Appeal Vol 1, the Plaintiff's claim against D1 is for agreed compensation under the mutual termination of the Sub-Contract whereas the Plaintiff's claim against D2 and D3 is for the return of the finders’ fees of RM300,000.00. At any rate D2 and D3 are perfectly capable of defending themselves or at least D1 would be in a position to inform them about a default judgment that had been entered against them. [22] Alternatively, if the stand of D1 is that the payment to the Plaintiff should come from D2 and D3 jointly being the parties that had received the money from the Plaintiff, then D1 could always file a claim against D2 and D3 for an indemnity in the event that D1 is found liable to pay the Plaintiff. D1 had not seen it fit to do this and surely it cannot now be a ground for saying that a trial ought to be proceeded with so that the whys and wherefores of the agreement to pay the sum of RM300,000.00 as 13 consideration for the mutual termination of the Sub-Contract Agreement may be explored further! Whether there is a triable issue on the agreement to pay agreed compensation of RM300,000.00 by D1 to the Plaintiff [23] In the Sub-Contract there were no terms as to the time period for the commencement of the Sub-Contract works. However in the Official Receipt dated 6 June 2012 (at page 153 of the Record of Appeal Vol 2) issued by D2 and D3 for the receipt of the part payment of the finders' fees of RM300,000.00, it was provided that the said sum shall be refunded to the Plaintiff in the event that the Project fails to be implemented within a period of sixty (60) days from the date of receipt of this money. [24] Pursuant to the aforesaid the Plaintiff by its letter dated 22 January 2014 (pages 172-173 Record of Appeal, Vol. 2), proceeded to terminate the Sub-Contract as follows: "Please be informed that the above project which (was) scheduled to start work in 2012 but until today there is no sign of site possession in order to start work. 14 As such, we have no choice but to proceed with mutual termination of contract and demand a sum of RM300,000.00 (Ringgit Three Hundred Thousand Only) as compensation of delay from you." [25] The above letter was captioned: "Re : Cadangan Projek Menaik Taraf Jalan Morak-Kebakar Cabang Empat, Tok Mek Ngah, Fasal 2 (Reka dan Bina) - Mutual Termination of Contract" [26] D1 by its letter dated 3 March 2014 (pages 154-158 Record of Appeal, Vol. 2), agreed to this proposal of a mutual termination and to the payment of compensation of RM300,000.00 on or about 15 March 2014 “in full and final settlement by reason of the termination of the said Sub-Contract Agreement." This letter is the lynchpin of the Plaintiff's claim and is reproduced in full below for its import and implication: (Company No. 831615-T) The Petroleum Project & Technical Consultations Company Our Ref: Petitioner/Mal/Kel/Tumpat/03032014/1530-jfa Date : 3rd March 2014 LU STRONG INTERNATIONAL SDN. BHD A-2-1 Level 2, 157 Hampshire Place No. 1, Jalan Mayang Sari 50405 Kuala Lumpur 15 Attention: Mr. Liu Zhi Fu Managing Director Dear Sir, Re: “Cadangan Projek Menaik Taraf Jalan Morak-Kebakar Cabang Empat, Tok Mek Ngah, Fasa (Reka Dan Bina)” Mutual Termination of Sub-Contract Agreement. _______________________________________________________ Reference is made to the above matter and to you letter dated 22/1/2014 under Ref No: LS/PA/CKH/PC1803 and your letter dated 11/2/2014 under Ref No: LSI/PA/CKH/PC 1102 as well as our emails to your dated 29.1.2014 and 14.2.2014 respectively.

Please be advised that a Sub-Contract Agreement dated 4th June 2012 was executed between Yourself and Petrojet Asia Sdn. Bhd., in respect of the abovementioned Project (hereinafter referred to as the said Sub-Contract Agreement).

Further be advised that by your letter dated 22.1.2014 you had proposed a mutual termination of the said Sub-Contract Agreement and a payment of RM300,000.00 (RM: THREE HUNDRED THOUSAND ONLY) as compensation for the termination of the said Sub-Contract Agreement.

4.

In view of the above we hereby confirm that the said Sub-Contract Agreement has been mutually terminated as agreed and that upon the payment of RM300,000.00 (RM: THREE HUNDRED THOUSAND ONLY) in full and final settlement as stated above, you shall have no further claims whatsoever against Petrojet Asia Sdn Bhd. 16

Kindly acknowledge the above by signing herein. Yours faithfull, Petrojet Asia Sdn.Bhd. (Company No. 831615-T) Witnessed by: - sgd - - sgd – Johnathan Francis Arokiasamy Ananda Kumar Rajalingam Executive Chairman Chief Executive Director We, Lu Strong International Sdn. Bhd., acknowledge the acceptance of the above. Yours faithfully, Witnessed by: Lu Strong International Sdn. Bhd. (Company No: 807216-H) - sgd – - sgd – Li Zhi Fu Chen Keng Hong Managing Director MyKad No. 540813-08-5853 [27] One can see that the Plaintiff's letter of 22 January 2014 read together with D1's letter of 3 March 2014 as reproduced above, have all the elements of a valid, binding and enforceable contract in that there is an offer and acceptance, a considerations and a clear intention to create a legal relation. Even D1's letter of 3 March 2014 is by itself a valid, binding and enforceable contract as the Plaintiff had acknowledged acceptance of the terms and conditions of the agreement by signing at the last page of the said letter, acknowledging and accepting the terms and conditions. 17 [28] D1's letter of 3 March 2014 constituted a concluded contract arising out of a mutual termination of the Sub-Contract Agreement. As at 3 March 2014 a concluded settlement contract had come into being. There could well be further letters between the parties or through their solicitors after the above date, but unless they constituted further terms that the parties have subsequently agreed, these letters cannot unmake what has been made i.e. a concluded contract in D1's letter of 3 March 2014. [29] We shall take a look at some of these letters to ascertain if further terms have been agreed to either vary, alter or add or subtract from the concluded contract of 3 March 2014. There was the letter at pages 190-191 of the Record of Appeal Vol 2, from the Plaintiff's solicitors Messrs Azwar & Associates dated 11 June 2014 to D1 in the form of a Letter of Demand to demand for the sum of RM300,000.00 within 14 days failing which the Plaintiff shall treat the Sub-Contract Agreement as having been breached by D1 whereupon the Plaintiff shall be entitled to exercise its right under the same and charge interest on a daily basis at the rate of 8% per annum. [30] D1 replied through its solicitors Messrs Soraya Jabid, Deborah & Co in a letter dated 26 June 2014 at pages 193-194 of the Record of Appeal 18 Vol 2. What is relevant is at paragraph 6 and 7 of the said letter reproduced below: "6. We have been instructed by our client that there was no agreement by our client by letter dated 3 March 2014 on the payment of interest of 8% per annum as stated at paragraph 4 of your above mentioned letter (of 11 June 2104) and by reason thereof your client does not have any claim for interest as stated in your said letter.

Further, we have been instructed by our client that by reason of the delays in the implementation of the said Project, our client had explained to Mr. Chan Keng Hong on the current financial situation of our client. In view of the aforesaid our client has instructed us to request for your client's indulgence to grant an extension of time until the end of October 2014 to make full payment of the sum of RM300,000.00 to your client." (emphasis added) [31] Plaintiff's solicitors replied by their letter of 2 July 2014 to say that they would consider giving an extension of time till end of August 2014 for D1 to make full payment of RM300,000.00 on condition that one Mr Johnathan Francis Arokiasamy who is D1's Executive Chairman and another Mr Ananda who is D1's Executive Director, each give a written personal guarantee to pay the said sum by end of August 2014. The 19 Plaintiff's solicitors further reiterated their right to charge interest at the rate of 8% per annum for such extended time as the Plaintiff may give. [32] At the hearing of the appeal, learned counsel for the Plaintiff conceded that the interest term of 8% per annum cannot be unilaterally imposed subsequently as it was not contained in the concluded contract of 3 March 2014 in D1's letter that they had agreed and countersigned. That however does not and cannot mean that what had crystallized into a contract in D1's letter of 3 March 2014 has now been abrogated and dissolved merely because D1 is asking for the Plaintiff's indulgence to extend time for D1 to pay and the Plaintiff was unwilling to give an extension of time without the payment of interest and without D1 furnishing 2 guarantors in the persons suggested. As the parties could not agree on the further terms, what had been concluded remains. The Plaintiff is thus perfectly entitled to sue and proceed with summary judgment on the sum claimed. [33] The learned Session Court Judge referred to the Court of Appeal case no. B-02-1288-08/2014 Lim Ban Kay @ Lim Chiam Boon v Kilang Kelapa Sawit Morib Sdn Bhd & 2 others, where Justice David Wong Dak Wah held that: 20 “16. In our view the just mentioned provisions were crystal clear in that the intention of the contracting parties was that no amendment to the four agreements could be made unless by a subsequent written document. In the case of Perry v Shaffields (1916) 2 Ch 187 at page 192 Lord Cozen Hardy made a pertinent point when he said: “Though, when a contract in letters, the whole correspondence should be looked at, yet if once a definite offer has been made, and it has been accepted without qualification, and it appears that the letter of offer and acceptance contained all the terms agreed on between the parties the complete contract thus arrived at cannot be affected by subsequent negotiation. When once it is shown that there is a complete contract, further negotiations between the parties cannot, without the consent of both, get rid of the contract already arrived at.” (emphasis added) [34] Applying the above dicta to the facts of the present appeal, a concluded contract having been arrived at by D1's letter of 3 March 2014, 21 that contract cannot be rendered less than final or unenforceable as being still in a state of flux as the parties were continuing to negotiate. The terms of payment of RM300,000.00 as agreed consideration for the compensation had been agreed for the mutual termination of the Sub-Contract Agreement. Though the parties could not agree on the extension of time to pay and on interest payable and on the 2 guarantees to be furnished, that does not reopen or annul for fresh negotiation the whole of the settlement. [35] This Court is also in agreement with learned counsel for the Plaintiff when he referred to the case of Hasrat Usaha Sdn Bhd v Pati Sdn Bhd [2011] 2 CLJ 863, where Court of Appeal held at page 871: “[10] ... Although the plaintiff disputed the correctness of the amount stated in the said letter, ... there was a clear and unequivocal admission by the defendant that there was a balance of RM1,310,806.02 due to the plaintiff. Up to that amount, the defendant was under obligation to pay to the plaintiff. It does not make any difference that the defendant was merely enquiring and seeking confirmation of the correctness of the figure. The facts still remained that the defendant's own accounting records 22 show that there was an outstanding sum of RM1,310,806.02 payable to the plaintiff. Accordingly the appeal of the defendant is dismissed with costs." (emphasis added) [36] In the present appeal, not only was there a clear unequivocal agreement to mutually terminate the Sub-Contract Agreement with the payment of the agreed compensation sum of RM300,000.00 but there was also the further letter of D1's solicitors dated 26 June 2014 seeking the Plaintiff's indulgence for an extension of time till end of October 2014 to make the agreed payment. Whether the letter of 26 June 2013 marked "Without Prejudice" is admissible [37] Learned counsel for D1 argued that the letter dated 26 June 2014 is marked as “Without Prejudice” and ought not to have been adduced and the Court ought not to have taken the said letter into consideration (pages 192-194 Record of Appeal, Vol 2) [38] Learned counsel for D1 referred to the Federal Court case of Malayan Banking Berhad v Foo See Moi [1981] 1 MLRA 641 (pages 53- 60 “ABOA”) it is stated that “... it is settled law that letters written without prejudice are inadmissible in evidence”. Further, in the case of Oh Kuang 23 Liang v Associated Wood Industries Sdn Bhd [1995] MLRH 78 it was stated that all correspondences marked as "without prejudice" cannot be adduced in any affidavit and the Court pursuant to Order 41 Rules of Court 2012 is able to strike out the said paragraph and exhibit. [39] The Plaintiff’s learned counsel submitted that D1’s solicitor’s letter dated 26 June 2014 was a letter requesting for an extension of time for D1 to make payment to the Plaintiff. Prior to this letter, both parties i.e. the Plaintiff and D1 had already agreed to terminate the Sub-Contract Agreement and D1 had agreed to pay the Plaintiff a compensation sum of RM300,000.00. In such a situation, when the debt is not in dispute, “without prejudice” had no application. [40] As authority for that proposition the Plaintiff referred to the Federal Court case of Ted Bates (M) Sdn Bhd v Balbir Singh Jholl [1979] 2 MLJ 257, where Federal Court held that: “... The learned Judge considered that that letter should have been regarded as written without prejudice. With respect, we think he is wrong. This has no application to a case where a man says he owes another a certain sum but merely asks for time to repay the sum. ... 24 The question of prejudice has no application unless a person is in dispute or negotiation with another at the time.” [41] With that proposition of law this Court would agree. [42] Further as correctly pointed out by the Plaintiff, D1 had used that letter in their affidavit in support which been affirmed by Johnathan Francis on 11 November 2014 in their application to set aside the Judgment in Default. [43] In D1's affidavit in support which was affirmed by Johnathan Francis on 11 November 2014, D1 had adduced its solicitor’s letter dated 26 June 2014 as exhibit JFA-5. Therefore, D1 had waived the privilege of the said letter. [44] There is merit in that argument. Learned counsel for the Plaintiff referred to the case of Dusun Desaru Sdn Bhd & Anor v Wang Ah Yu & Ors [1999] 5 MLJ 449, where Abdul Malik Ishak J (as His Lordship then was) held that: “... The veil of privilege may be waived, but both parties must consent to the waiver. As with the forms of other privilege, a waiver may be implied by conduct. There was thus a waiver on the part of the 25 plaintiffs of the privilege shield when they first introduced the ‘without prejudice’ letter in encl 4...” [45] I have no good reason to disagree with that sound proposition of law. At any rate even without reference to the said letter, there is more than ample evidence for the Sessions Court Judge to have come to the conclusion that there has been a concluded contract on the settlement in D1's letter of 3 March 2014 which terms and conditions of the settlement were agreed by the Plaintiff as indicated in their counter signing the said letter in the acknowledgment and acceptance of the terms and conditions. Whether this is a case where for some other reason there ought to be a trial [46] The law on summary judgment is clear. I need only to refer to the Supreme Court case of Bank Negara Malaysia v Mohd Ismail & Ors [1992] 1 MLJ 400, which Supreme Court held that: “Held (1) in an application under O.14, the court has to be satisfied on affidavit evidence that the defence has not only raised an issue, but also that the said issue is triable. The determination of whether an issue is or is not triable depends on the facts or the law arising from each case as disclosed in the affidavit evidence before the court. 26 A complete defence need not be shown. The defence set up need only show that there is a triable issue.

Under an O 14 application, the duty of a judge does not end as soon as a fact is asserted by one party, and denied or disputed by the other 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. Unless this principle is adhered to, a judge is in no position to exercise his discretion judicially in an O 14 application.” (emphasis added) [47] In the case of HSBC Bank Malaysia Bhd (formerly known as Hong Kong Bank Malaysia Bhd) v LH Timber Products Sdn Bhd (formerly known as Ho Lim Sawmill Sdn Bhd) & Ors [2005] 6 MLJ 625, Justice Abdul Malik Ishak J. (as His Lordship then was) observed as follows: “25. I must categorically say that this appeal was unique – in that it did not involve any dispute as to the facts. That being so it was certainly suitable for summary judgment and I was rather 27 surprised that the SAR had dismissed the plaintiff’s application for summary judgment in encl 5. The defendants themselves have admitted that they were and are owing to the plaintiff the sum of RM5,020,294.29. In a letter dated 28 October 1999 from the first defendant to the plaintiff, the defendants readily admitted owing to the plaintiff the sum of RM5,020,294.29 and appealed for re-structuring of the load repayments. Again, letters from the first defendant dated 16 December 1999 and 24 December 1999 showed that the defendants admitted owing that sums. All these three letters of admissions by the first defendant were exhibited in the relevant affidavits and they were certainly damning evidence against the defendants. In the face of such solid evidence, summary judgment should have been given against the defendants in favour of the plaintiff and the appeal in encl 10 should be allowed with costs. The file should be closed forthwith bearing in mind that it was a 1999 file. But, in an attempt to write a speaking judgment, I must not stop here. I must proceed further and I have this to say. ... 28

In my considered view, in the context of the present appeal, it was rather obvious that the defendants have no defence on the merits against the plaintiff’s claim ...” (emphasis added) [48] Based on the principles enunciated above I have no hesitation in granting summary judgment for the sum claimed except that interest should not be at 8% per annum because clearly there was no agreement on that. The learned Sessions Court Judge had ordered interest to run at 8% per annum on the sum of RM300,000.00 from 25 June 2014 presumably from the Notice of Demand of the Plaintiff's solicitors dated 11 June 2014 giving D1 14 days to pay up failing which interest at 8% per annum shall be charged. Learned counsel for the Plaintiff had conceded this. [49] Other than the issue of interest for which this Court on appeal can make the necessary order, should the whole of the decision of the Sessions Court be set aside and the matter to be sent back for trial in the Sessions Court? [50] Learned counsel for D1 said that this case on appeal is one that falls under the category of where "there ought for some other reason to be a trial" under O 14 r 3(1) ROC. The following cases were cited. 29 [51] In the case of Miles v Bull [1968] 1 QB 258 at pages 265-266, the Court stated: “... the defendant can obtain leave to defend if the defendant satisfies the court that "there is an issue or question in dispute which ought to be tried or that there ought for some other reason to be a trial"... If the defendant cannot point to a specific issue which ought to be tried but nevertheless satisfies the court that there are circumstances that ought to be investigated then the concluding words are invoked.” [52] In the case of Concentrate Engineering Pte Ltd v United Malayan Banking Corp Bhd [1990] 1 LNS 41 the Singapore High Court stated. “The words there ought for some other reason to be a trial seem to give the court adequate powers to confine O 14 to being a good servant and prevent it from being a bad master”. [53] Further, in the case of Chiew Soon v Tay Tai Aun [1990] 1 CLJ (Rep) 726 at p 728, the Court stated that “A complete defence need not be shown. The defence set up need only show that there is a triable issue of question or that for some reason there ought to be a trial”. 30 [54] This principle had also been applied in the case of Lin Securities Pte v Noone & Co Sdn Bhd & Anor [1989] 2 CLJ (Rep) 76 at p 77, the Court stated that, ”Order 14 provides that a defendant may show cause against an application for summary judgment by affidavits or otherwise, and as such the defendant is entitled to show at the hearing of the O 14 application that over and above what has been pleaded in the statement of defence he had other defences”. [55] Whilst there may be cases that would justify going for trial where witnesses are called and where triable issues may be fully tried and determined, here is a case where no useful purpose may be served by going for trial. There is no need to go for trial merely to uncover the relationship between D2 and D3 with D1 in an investigation exercise. Both D2 and D3 have not bothered to defend this suit by the Plaintiff. They are perfectly able to protect their interest if so minded. The same documents that have already been produced in this application would be produced at the trial. As the documents speak for themselves this Court sees no justification of going for trial to satisfy one's curiosity as to the relationship that D2 and D3 may have with D1. 31 Pronouncement [56] This Court had therefore dismissed the appeal and as learned counsel for the Respondent/Plaintiff had conceded that there was no agreement on interest at 8% per annum from 25 June 2014, this Court had varied that part of the judgment to normal Court interest of 5% per annum on RM300,000.00 to run from date of Amended Statement of Claim i.e. April 2015 to date of realization. [57] I had also ordered costs of RM5,000.00 to be paid by D1 as Appellant to the Plaintiff as Respondent in this appeal. Dated: 19 August 2016 - signed - LEE SWEE SENG Judge High Court Kuala Lumpur For the Appellant : Deborah Kaur (Messrs Soraya Jabid, Deborah & Co.) For the Respondent : S C Cheah and Noor Amirul Nazreen Anas (Messrs Azwar & Associates) Dates of Decision: 3 March 2016