Pen Express Worldwide (M) Sdn Bhd v Asia Global Total Logistics Sdn Bhd (PA-12ANCC-5-05/2023)

1.

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 S/N DHkGHEClaEydmg/88v7jg Page 3 of 11 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 damages claimed, apply to the Court for judgment against that defendant… Judgment for plaintiff (O. 14 r. 3)

3.

Unless on the hearing of an application under rule 1 either the Court dismisses the application or the defendant satisfies the Court with respect to the claim, or the part of a claim, to which the application relates 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 of that claim or part, the Court may give such judgment for the plaintiff against that defendant on that claim or part as may be just having regard to the nature of the remedy or relief claimed… [emphases added] [6] There are two alternative tests that D needs to satisfy to fend off P’s SJ Application. D needs to demonstrate that—

there is, what is commonly known as a triable issue, namely an issue in dispute between the parties that require the whole process of a trial before the Court can decide on that issue; or

besides a triable issue, there is some other reason that there should be a trial of the suit. [7] From case law authorities, there are principles that I am mindful to heed for this Appeal. The first is the principle that when the parties assert certain facts or issues or reasons that bear on the merits of a summary judgment application, I am not bound to accept those assertions just because the parties made them. I must evaluate the cogency of an assertion, and consider whether the assertion is tenable, S/N DHkGHEClaEydmg/88v7jg Page 4 of 11 or plausible, or reasonable. If the assertion is “equivocal or lacking in precision or is inconsistent with undisputed contemporary documents” or is “inherently improbable”, then I have the “duty to reject such assertion”, and consider the issue not triable: Bank Negara Malaysia v Mohd Ismail & Ors [1992] 1 MLJ 400 (SC) at page 408; [1992] 1 CLJ 627; [1992] 1 MLRA 190. [8] In Bank Negara Malaysia (supra), the Supreme Court held— 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. In our opinion, unless this principle is adhered to, a judge is in no position to exercise his discretion judicially in an O 14 application. Thus, apart from identifying the issues of fact or law, the court must go one step further and determine 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. [9] The second principle is that I must evaluate whether the facts or issues or reasons raised by D amount to a “fairly arguable defence” to the claim, such that I have a “reasonable doubt” against granting judgment summarily: Malayan Insurance (M) Sdn Bhd v Asia Hotel Sdn Bhd [1987] 2 MLJ 183 (SC); [1987] 1 CLJ 246; [1986] 1 MLRA 269. [10] The third principle is that when I am deliberating on the facts or issues or reasons that D raises, the question that I am to determine is S/N DHkGHEClaEydmg/88v7jg Page 5 of 11 are they bona fide triable issues i.e. issues that require determination by trial?—Ng Hee Thoong & Anor v Public Bank Bhd [1995] 1 MLJ 281 (CA); [1995] 1 AMR 622; [2000] 1 CLJ 503; [1995] 1 MLRA 48. [11] P’s SJ Application is defeated by D raising triable issues. In other words, D needs to demonstrate that a trial is required for P to prove his claim against D. [12] Put differently, just from an analysis of the parties’ respective pleadings and affidavits, as well as the documentary evidence exhibited—when I am not persuaded to bypass a trial to summarily enter judgment against D, then P’s SJ Application must fail. Put conversely, if I am persuaded to bypass a trial to allow P’s claim, P’s SJ Application should be allowed. [13] Yet another way of putting it is that it must be obvious to me that the D has no defence on the merits before summary judgment is granted. P’s CLAIM [14] P provided logistics services to D. P’s services include transporting inventory from D’s customers to the designated destination. [15] At D’s request, P provided the logistics services which are the subject matter of this suit. P issued Invoices to D. D failed to pay. D’s DEFENCES [16] From D’s Defence and affidavits filed in P’s SJ Application proceeding, these are D’s defences— S/N DHkGHEClaEydmg/88v7jg Page 6 of 11

D denies requesting for logistics services from P;

P provided logistics services to another entity;

the particulars pleaded in P’s Statement Of Claim do not correspond with the amount claimed;

P double-claimed interest from D. DEALING WITH D’s DEFENCES Logistics services were provided to D [17] The documentary evidence produced in P’s SJ Application proceeding verifies that the logistics services were in fact provided to D: Pen Express Worldwide Sdn Bhd, and not to another company named Pen Express Freight Services Sdn Bhd (Pen Express Freight Services). These are the reasons for my finding. [18] First—the subject Invoices for the logistics services provided were issued to D, not to Pen Express Freight Services. There were 16 Invoices, issued between September 2019 (the first was dated 30.9.2019) and December 2019 (the last was dated 31.12.2019). All were issued to D, to D’s Bukit Mertajam address. From December 2019 until this suit was filed three years later in December 2022, D did not notify P that D did not ask P for the provision of logistics services, or that P had invoiced the wrong company. In D’s two affidavits in reply, D has produced no evidence of such communication. [19] Second—the email communication between P and D were made between these persons— S/N DHkGHEClaEydmg/88v7jg Page 7 of 11

from P: P’s Chief Executive Officer: Rosli Md Salleh (Rosli) and P’s employee: Rafidah Muhammad Arif; and

from D: D’s Director: Moes Harianto and his employee: Denise (this fact is admitted to in D’s Affidavit In Reply (2)). [20] Moes Harianto’s email address is “moes@penexpress.com.my”. And Denise’s email address is “denise@penexpress.asia”. [21] The only occasion that Pen Express Freight Services’ name appears in the communication is in Denise’s emails. In Denise’s emails, where she signed-off on the emails, her name appeared above Pen Express Freight Services’ name. [22] Moes Harianto is a director and a shareholder in Pen Express Freight Services too. [23] So, D (through Moes Harianto and Denise, who works for him) transacted or contracted with P for P to provide logistics services to D. [24] Third—the email communication between the parties was from June 2020 to August 2020. About six months after P issued its Invoices to D (they were issued between September 2019 and December 2019), P began to remind and chase D for payment. D never stated that D did not ask for P’s logistics services, or that P never provided D with any logistics services, or that D did not receive P’s Invoices, or that P invoiced the wrong company. [25] Put differently, if D was issued 16 Invoices, over a period of three months, that were not meant for D, and the Invoices were for services S/N DHkGHEClaEydmg/88v7jg Page 8 of 11 that D did not ask for—it would be reasonable to expect D to contemporaneously object to, or protest against the Invoices, or to notify P that the Invoices were wrongly issued to D. But D did not do any of that. [26] Fourth—in D’s email (sent through Denise’s email address) dated 6.7.2020—which was more than six months after the provision of the logistics services and issuance of the 16 Invoices—D informed P that their “end customer disagrees with the charges and they want to discuss further”. P (through Rosli’s email) responded by stating that D cannot withhold payment because D’s customer is not paying D, as P has provided the logistics services D asked for. Further, in a later email, D stated that D was “waiting for their China site to discuss this topic” of P’s outstanding Invoices. [27] I find that the email communication between the parties, particularly the content of these emails referred to above, constitutes an admission by D that—

P provided the logistics services to D;

D received P’s Invoices;

D did not pay P’s Invoices, and one of the reasons that D refused to pay the Invoices was that D’s customer, in turn, would not pay D for goods they delivered or services they provided to their customer. The particulars pleaded in the Statement Of Claim tally with the documentary evidence produced [28] Contrary to D’s bare assertion in its Defence—that (to quote D) “the particulars pleaded in P’s Statement Of Claim do not correspond S/N DHkGHEClaEydmg/88v7jg Page 9 of 11 with the amount claimed and are full of discrepancies”—I find facts that are quite the opposite. P pleaded that 16 Invoices were issued to D. P particularised the Invoice numbers, the Invoice dates, and the Invoiced amounts. I checked these particulars on the 16 Invoices exhibited to P’s Affidavit In Support. I find that all the particulars pleaded in the Statement Of Claim tally with the particulars contained in the Invoices produced. [29] This leaves D in the position where the evidence that P produced entirely extinguishes D’s assertion. [30] Additionally, D has failed to condescend upon any particulars to support D’s assertion. In other words, D has failed to demonstrate that the particulars in P’s Statement Of Claim do not correspond to the amount claimed. D failed to show that P has double-claimed on interest [31] Similarly, D has presented no particulars or computation of the alleged double-claiming of interest. This assertion too remains a bare, unsubstantiated assertion. [32] To the contrary, I find that P’s claim for the total amount outstanding of RM175,591.25 contains no element of interest, even though P is entitled to charge a 2% per month interest on any overdue amount. The contractual term to charge this 2% per month interest is stated in P’s Invoices. When I add up all the 16 respective amounts in P’s 16 Invoices, the total amount is the RM175,591.25 claimed. This means that P did not charge any interest on the amount due on each S/N DHkGHEClaEydmg/88v7jg Page 10 of 11 Invoice. D’s assertion here is not only bare and unsubstantiated—it is incorrect. P did not charge D any interest. CONCLUSION [33] In conclusion, I find that—

D’s Defence and affidavits in reply filed in P’s SJ Application in the Sessions Court do not disclose that D has a “fairly arguable defence” to the claim;

I have no reasonable doubt that judgment should be entered summarily against D;

I am persuaded to bypass a trial and summarily enter judgment against D;

there is no bona fide triable issue that warrants a trial to determine it i.e. there is no triable issue that defeats P’s SJ Application. [34] For these reasons, I dismiss D’s Appeal. I uphold the decision of the Sessions Court in granting the order to enter judgment summarily against D. As for costs, I order D to pay P costs of RM7K by 23.5.2024. Costs are subject to the allocatur. S/N DHkGHEClaEydmg/88v7jg Page 11 of 11 Dated: 28 October 2024 KENNETH ST JAMES Judicial Commissioner Penang High Court Counsel/Solicitors: For the Appellant – Roghini Sunderajoo and Kelvin Lee Ewe Chuan [Messrs. Lee Law Office (Bayan Lepas)] For the Respondent – Saiful Ambar, Nabila Waheeda and Fazirah Aliah [Messrs. Amir Khusyairi & Associates (Teluk Intan)] Legislation referred to:

Order 14 Rule 1 of the Rules of Court 2012.

Order 14 Rule 3 of the Rules of Court 2012. Cases referred to:

Bank Negara Malaysia v Mohd Ismail & Ors [1992] 1 MLJ 400 (SC); [1992] 1 CLJ 627; [1992] 1 MLRA 190.

Malayan Insurance (M) Sdn Bhd v Asia Hotel Sdn Bhd [1987] 2 MLJ 183 (SC); [1987] 1 CLJ 246; [1986] 1 MLRA 269.

Ng Hee Thoong & Anor v Public Bank Bhd [1995] 1 MLJ 281 (CA); [1995] 1 AMR 622; [2000] 1 CLJ 503; [1995] 1 MLRA 48.