Mercedes-Benz Services Malaysia Sdn. Bhd. v Paul Raj A/L Davis (BC-A52NCC-18-05/2024)

The Plaintiff filed an application for a summary judgment under Order 14 of the Rules of Court 2012 against the Defendant (Enclosure 6).

This Court on 18 October 2024 had allowed the Plaintiff’s application 20 with costs and ordered that a summary judgment be entered against the Defendant for the amount of RM282, 049.31 as at 22 November 2023 and 8% interest on RM271, 901.79 per annum calculated in a daily basis from 23 November 2023 until full settlement. 25 Facts of the case:

The Plaintiff and Defendant had entered into a Hire Purchase 30 Agreement on 12 September 2018, whereby the Plaintiff had agreed to give and the Defendant had agreed to receive by way of hire purchase financing a Mercedes-Benz MB AMG C43 (W205) (CKD) MY Chasis No. WDD2050646L032937, engine no. 27682330749214, with registration no. BNW 203.

The Defendant failed to settle the outstanding amount of the monthly instalments and its outstanding arrears. The Plaintiff’s solicitor issued out Notice of Demand and had also served a Notice of Termination of the Hire Purchase Agreement against the Defendant. Nevertheless, 40 the Defendant had failed to settle the total outstanding loan nor surrender the said vehicle to the Plaintiff. The Plaintiff then filed a suit against the Defendant and hence this application for summary judgment. 45 Preliminary requirements of Order 14 Application

It is trite law that three preconditions must be satisfied for an Order 14 application. First, the Defendant must enter an appearance to the action. Secondly, the statement of claim must be served on the 50 Defendant. And thirdly, the affidavit in support of the application must comply with the requirement of r.2. (See National Company for Foreign Trade v. Kayu Raya Sdn Bhd [1984] 2 MLJ 300).

It is important to highlight that in a summary judgment application; the 55 Plaintiff does not need to prove his case. Once these three preconditions are met, the burden shifts to the Defendant to raise triable issues. (See Cempaka Finance Bhd v. Ho Lai Ying & Anor [2006] 3 CLJ 544, FC., Bank Negara v. Mohd Ismail & Ors [1992] 1

The Plaintiff in this case had clearly satisfied the preliminary requirements for proceeding under Order 14. Thus, the burden is now on the Defendant to raise triable issues. 65

The Defendant raised three issues in opposing the summary judgment application. Firstly, whether the Hire Purchase Agreement is void for failure to comply with Section 4(1)(b)(ii) of the Hire Purchase Act 1967. 70 Secondly, whether the Hire Purchase Agreement is void for failure to comply with Section 5(1) of the Hire Purchase Act 1967; and thirdly whether the Defendant is entitled for the reimbursement of the money payable under the Hire Purchase Agreement.

On the first issue, the Defendant submitted that there was violation of Section 4(1)(b)(i) and (ii) of the Hire Purchase Act 1967 when the Plaintiff failed to serve the statement in the Second Schedule on the Defendant before the signing of the agreement. 80

The Plaintiff on the other hand submitted that the agreement is valid and the requirement under Section 4(1)(a) of the Hire Purchase Act has been complied with. The Plaintiff in his affidavit averred that the Defendant has admitted to the receiving of the written statement and 85 had put down his signature on the written statement on 24 August 2024.

Based on the affidavit, it appears that the Defendant himself had signed the written statement on 24 August 2024 and had also admitted 90 to receive the document. Therefore, I find that the requirement under Section 4(1) of the Hire Purchase Agreement 1967 has been complied with by the Plaintiff. Furthermore, the Defendant appears to be fully aware of his obligation to pay the monthly instalments and admitted to have made RM184,637.62 payment without any objection. This shows 95 that he affirms the terms and conditions of the agreement. His contention that he was not served of the written statement and denied of the protection of the risks of the financial obligation is therefore an afterthought. Hence, I find that the first issue raised by the Defendant is resolved and not an issue.

The second issue raised by the Defendant is whether the Hire Purchase Agreement is void for failure to comply with Section 5(1) of the Hire Purchase Act 1967. According to the Defendant, the Hire Purchase Agreement was not served on him and therefore it was a 105 non-compliance of Section 5(1) of the Hire Purchase Act 1967 which requires the it to be served within 21 days after making the agreement.

Plaintiff however averred that the Hire Purchase Agreement was served on the Defendant via registered post on 13 September 2018 to the Defendant’s address at No. 16, Jalan 2/10, Taman Kosas, 68000 110 Ampang, Selangor as per exhibit MBSM 2 of the Plaintiff’s affidavit in reply.

Based on the affidavit, it appears that the Plaintiff had served on the Defendant the Hire Purchase Agreement. And, the service is a good 115 service in accordance to Clause 24 of the Hire Purchase Agreement. Therefore, I find that the requirement under Section 5(1) of the Hire Purchase Agreement has been complied with. Hence, issue raised by the Defendant is a non-issue and does not need to go for a trial.

The third issue raised by the Defendant is whether the Defendant is entitled for the reimbursement of the money payable under the Hire Purchase Agreement. The Defendant submitted that since the contract is void ab initio, the Plaintiff must restore the sum received from the Defendant.

As stated above, the Plaintiff in this case had not breached any terms and conditions in the Hire Purchase Agreement as well as the regulations in the Hire Purchase Act 1967. I find that this Hire Purchase Agreement entered into by the Plaintiff and Defendant is a good and 130 enforceable contract. The Defendant had also had the advantage of using the vehicle for years without any complaint before. His action in raising this issue now is clearly an after-thought. The third issue raised by the Defendant is therefore has no merit and a non-issue.

It is also a trite law that a summary judgment will be allowed in plain and obvious cases as decided in the case of Abdol Mulok Awang Damit v. Perdana Industri Holdings Bhd [2003] 4 MLJ 441. (See also Chin Yuan Tai v Teraxis Construction Sdn Bhd & 3 Ors [2014] 140 1 LNS 259; South East Asia Insurance Bhd v Kerajaan Malaysia [1998] 1 CLJ 1045).

Based on the above reasons, I find that the defendant has failed to raise any issue or a question to be tried. The issues raised by the 145 Defendant have no merits. This is obviously a plain case for summary judgment. Therefore, the Plaintiff’s application under Enclosure 6 for a summary judgment against the Defendant is allowed with costs. 150 Dated 14 November 2024. tt (Fadzlin Suraya binti Mohd Suah) Sessions Court Judge 155 Ampang Sessions Court, Selangor Darul Ehsan.