Ntp Industrial Supply Sdn Bhd v Jyd Marketing Sdn Bhd (BA-12ANCC-81-12/2019)

The Defendant appeals against the decision of the Sessions Court allowing the Plaintiff’s summary judgment for the sum of RM 332,380.20 together with interest at the rate of 5% from date of judgment until realization and costs. Plaintiff’s case for summary judgment

The Plaintiff is a company incorporated in Malaysia and conducts its business at No.7-2-3, Jalan 3/109F, Jalan Danau Business Centre, Taman Danau Desa, Off Old Klang Road, Kuala Lumpur.

The Defendant engaged the Plaintiff to construct and supply one unit of Aluminium Pre-Treatment Auto Line machine. The initial 2 quotation issued on 17.8.2017 for the machine with detailed specifications was for a price of RM 550,000. This price included a component part referred to as the control panel/sub panel/transporter control panel/PLC programming (“main control panel”).

Upon the Defendant’s request, the main control panel was taken out from the specifications. A new quotation on 30.8.2017 was then issued for the machine for a price of RM 422,000.

The instructions on the supply of the component part was subsequently changed upon the request of one Kelvin from Nishima Automation Sdn Bhd., a subcontractor company of the Defendant. Kelvin requested that the main control panel be supplied together with the machine. As a result of the request, parties then agreed that the cost of manufacturing the main control panel is to be RM 100,000. The Plaintiff then issued an invoice No. J03726 dated 30.8.2017 for the main control panel, for the price of RM 106,000 inclusive of Goods and Services Tax at 6%.

Upon the parties agreement as to the price for the machine to be supplied which included the main control panel, the Plaintiff then instructed Hong Ke Mechanical Equipment Co Ltd., a manufacturing company in China (“the China company”) to commence construction of the machine.

In the course of constructing the machine, the Defendant requested the Plaintiff to purchase additional parts for the machine, for which the Plaintiff incurred RMB 73,767.00 which was paid to 3 the China company. In addition to this amount, an advance amount of RMB 20,000 was requested by Kelvin, but only an amount of RMB 10,000 was paid to Kelvin through the China company. On 18.12.2017, the China company sent a written confirmation to the Plaintiff that an additional amount of RMB 83.767.00 had been incurred, comprising of purchase of additional parts and advance to Kelvin.

In December 2017, the completed machine was shipped to the end user in Vietnam, upon the request of the Defendant. All the arrangements for the shipment to Vietnam was made by the Defendant. As the machine had been delivered, the Plaintiff then issued an invoice no. J03858 for the sum RM 426,120 inclusive of GST at 6% on 12.1.2018.

Prior to completion of the machine, the Defendant had already made two payments to the Plaintiff vide UOB and Alliance Bank Berhad cheques for the sums of RM 106,000 and RM 150,000 issued on 6.9.2017 and 29.11.2017 respectively.

Notwithstanding the payment of these sums, the Plaintiff claims that an amount of RM 332, 380.20 is still owing to date. The amount owing comprises of the following amount as follows:-

Main control panel RM 106,000.00;

(ii) Machine RM 426,120.00;

(iii) Additional parts RM 50,260.20;

(iv) Advance pocket money to Kelvin RM 6,000.00__ Total RM 588,380.20 4 Less payment of (RM 256,000.00) Balance owing RM 332, 380.20

Despite the Plaintiff’s demand that the sum owing be paid, the Defendant has failed to pay the sum claimed. Hence the instant suit. Triable issues sought to be raised by the Defendant

In defence to the claim by the Plaintiff, the Defendant’s Affidavit filed in response raised the following issues.

the amount claimed by Plaintiff is disputed as it included an amount of RM 30,000 for packing, clearance, shipping and insurance incurred in China and Malaysia. The machine was intended to be sent to Malaysia after completion of construction in China, for testing and commissioning done here before shipping to Vietnam. However, the machine was instead shipped to Vietnam direct from China;

(ii) the amount for additional parts ought not to be claimed as it was the Plaintiff’s responsibility to ensure that all the parts were acquired before the construction of the machine. The Defendant was neither informed nor its consent sought for the purchase of the additional parts. The advance of RMB 10,000 was a private arrangement between the Plaintiff and Kelvin, which the Defendant was not privy to; 5

(iii) the Plaintiff was in breach of the agreement as it delayed in delivering the machine, failed to install the software to operate the machine and some of the parts were not functioning which required replacement and repair;

(iv) amounts of RM 106,000 and RM 150,000 were made under protests;

the Defendant has a counter claim against the Plaintiff. Decision of this court

The approach to be taken by this court in an O. 14 appeal has been settled. The appeal before me is a rehearing and not a review of the exercise of the learned Sessions Court judge’s discretion. (See: Ng Hee Thong & Another v Public Bank Berhad [1995] 1 MLJ 281, Malayan Insurance (M) Sdn Bhd v Asia Hotel Sdn Bhd [1987] 2 MLJ 183).

The Plaintiff in an application for summary judgment must satisfy the preliminary requirements under Order 14 Rules of Court 2012. (See: National Company For Foreign Trade v Kayu Raya Sdn Bhd [1984] 2 MLJ 300).

I find that the Plaintiff has done so in this case, as the Defendant has entered an appearance, the statement of claim has been served on the Defendant and the affidavit in support of the application complies with the requirements of rule 2 of Order 14. 6

It is a settled principle of law that once the preliminary requirements have been satisfied, the burden then shifts to the Defendant to satisfy the court that judgment should not be entered against it. (See: Cempaka Finance Bhd v Ho Lai Ying (trading as KH Trading) & Anor [2006] 2 MLJ 685). Amount claimed disputed

The disputed sum of RM 30,000 was stated in the earlier quotation of 17.8.2017. This quotation initially included the main control panel as part of the specifications, and the price of the entire machine was RM 550,000. However, there was a subsequent revision of the price in quotation dated 30.8.2017, where the price quoted was RM 422,000 excluding GST for the machine only.

This amount was later reduced to RM 402,000, as evident by Invoice no. J030858 dated 12.1.2018. There is nothing evidencing the sum of RM 30,000 in invoice J030858. The onus is on the Defendant to furnish proof that the amount of RM 402,000 includes the amount of RM 30,000 which he has failed to do.

Further, the Defendant did not raise any dispute or protest as to the amount stated in the invoice which was issued on 12.1.2018. If the Defendant had disagreed with the amount, surely it would have made a complaint formally and in writing to dispute the amount, as would be expected in the ordinary course of events.

Since these amounts are only disputed now, I conclude that the dispute is a clear afterthought. Further, the Defendant made 2 7 payments of amounts RM 106,000 and RM 150,000. The action of the Defendant is inconsistent with one who disputes indebtnessness. The payment of RM 106,000 was towards Invoice No. J03726. However the sum owing was not paid in full as the payment of RM 150,000 was only part payment towards invoice J03858. The balance was not paid even after the machine was delivered, resulting in the Plaintiff filing the instant suit. Payments made under protest

The contention of the Defendant that the amounts were paid under protest is not substantiated with any document. The allegation of payment under protest is rebutted by the evidence Plaintiff adduced of the Whatsapp message exchanges between the parties. On 28.11.2017, just before the machine was shipped over to Vietnam, the Plaintiff enquired from the Defendant whether the latter could make a part payment, the Defendant’s Director replied in the affirmative that a payment of RM 150,000 will be made. A cheque of the same amount was issued the following day. Viewed in this context, it is a far-fetched claim that the payment of RM 150,000 was made under protest. The earlier amount of RM 106,000 was also made without any evidence of having objected to making such payment.

Similarly, the other sums forming part of this claim which comprises of RM 50,260.20 for the additional parts purchased to assemble the machine and RM 6000 as advance pocket money to Kelvin was also not protested until the filing of this suit. On 25.4.2018, the Plaintiff’s solicitors wrote to the Defendant to demand for payment 8 of the sum owed. In response, the Defendant requested for the details of the sum claimed. The detailed breakdown for the amount of RM 332,380.20 was given vide the Plaintiffs’ solicitors letter dated 10.10.2018. The Defendant chose not to raise any objections on the sum claimed until the Plaintiff instituted this action.

I am of the view that the payments were made towards fulfilling the Defendant’s payment obligations for the construction of the machine. The allegation that they were made under protest is not plausible. Breach of the contract by Plaintiff

The Defendant alleged that the Plaintiff had delayed in delivering the machine, which was supposed to be delivered within 65 days from the payment of deposit of RM 106,000. This allegation is contradicted by the delivery terms stated in the invoice of 30.8.2017, which clearly stipulates that delivery is “60 days ex-factory after confirmation.”

In Bank Negara Malaysia v Mohd Ismail & Ors [1992] 1 MLJ 400, the Supreme Court held that, 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. 9

The assertion of the Defendant is clearly against the contents of the invoice adduced in evidence. Applying the principles enunciated in the above case, I accordingly reject the contention of the Defendant.

The Plaintiff was also alleged to have breached the contract in failing to supply a machine which was functional and which was found to have defects. The affidavit in Reply of the Plaintiff has adequately responded to the allegations. The alleged defect was only with regard to the blower which the Plaintiff supplied in accordance to the specifications of the Defendant. Having examined the averments in the affidavits filed on behalf of both parties, I would do not find any credibility in the Defendant’s claims on defects in the machine. Consequently, I do not find the Defendant to have a real defence here. Counter claim

The fact that there is a counter claim is no bar to allowing a summary judgment application. The Defendant’s counter claim is for RM 187,620.00 for payment made to a third party contractor to enable the machine to be fully functioning and also RM 118,324.50 for the purchase of replacement parts. These claims are separate from the Plaintiff’s claim and therefore does not affect the Plaintiff’s right to summary judgment on its claim. The Defendant is entitled to pursue its counter claim separately. (See: United Manufacturers Sdn Bhd (In Receivership) v Guru Timber Sdn Bhd & Anor [1986] 1 MLJ 168, Kang Hock Kim v Ikhlas Abadi Sdn Bhd [2011] MLJU 1447). 10

The material before me comprising of the affidavit evidence including the documentary evidence adduced by both parties establishes a prima facie case for summary judgment. The issues sought to be raised by the Defendant do not amount to triable issues necessitating a trial of the Plaintiff’s claim. In the circumstances, the Plaintiff ought to be allowed to enter judgment.

The appeal is dismissed and judgment is entered for the sum of RM 332,380.30 at the rate of 5% per annum from 13.12.2019 till realization. I also order that costs of RM 3000 for the proceedings here and below be paid to the Plaintiff. Dated: 17th November 2020 -sgd- ………………………. Alice Loke Yee Ching Judicial Commissioner High Court of Malaya 11 Counsel for Plaintif : Mr. Jonathan Chan Messrs Jonathan & Joshua Counsel for Defendant : Mr. CS Hoe