Petrozchem Oilfield Services Sdn Bhd v Scomi Oiltools Sdn Bhd (WA-22C-62-08/2018)

This Court had on 2.10.2018 allowed the plaintiff to enter summary judgment against the defendant for part of its claim for work done for and services rendered to the defendant based on an admission by the defendant on part of the claim. The summary judgment application was in Enclosure 9. 2 of 25

The balance of the plaintiff’s claim had then fallen within the jurisdiction of the Sessions Court and the plaintiff had filed an application in Enclosure 19 for transfer of the case to the Sessions Court which was heard on 5.10.2018. The defendant had no objection to the transfer and so an order was made for the transfer with no order as to costs.

There was no appeal filed against both orders and so no written grounds of judgment were provided until parties wrote in recently for the grounds of judgment.

Perplexed by the rather long lapse of time of nearly 2 years from the date both decisions were made, I had made a search in the Court Management System (“CMS”) which captured and preserved all documents filed by the parties with the courts and minutes entered.

It transpired that after some 13 months from the date of both decisions the defendant had applied to the Court of Appeal for an extension of time to file both the appeals on grounds that the payments made on the summary judgment entered was made under a mistake of fact and that there would be unjust enrichment if the summary judgment was not allowed to be appealed against.

As for the transfer of the proceedings to the Sessions Court it was argued that the balance claim of the plaintiff was still within the High Court’s jurisdiction and in any event the counterclaim of the defendant is above the monetary jurisdiction of the Sessions Court, being more than RM1 million. 3 of 25

The Court of Appeal had on 30.6.2020 allowed both the defendant’s applications for an extension of time to file both the appeals against the decisions of the High Court made in Enclosure 9 and Enclosure 19.

Hence this ground of judgment that is now written some 2 years later. Thankfully as the entire courts’ system is now paperless (as in no papers) rather than paper-less (as in less papers) I was able to access the documents filed some 2 years ago in the Kuala Lumpur High Court including the submissions filed by the parties and the minutes of the High Court and to refresh my recollection of what happened.

The plaintiff had filed a Summary Judgement Application for the sum of RM4,445,318.48 against the defendant. This sum is RM200,000.00 less than the amount claimed in the Statement of Claim filed because after the service of the Statement of Claim the defendant had made a further payment of RM200,000.00.

On 2.10.2018, I allowed a substantial part of the summary judgement application, namely for the sum of RM3,740,900.00 as learned counsel for the defendant had candidly confirmed before the Court that if at all any sum is owing it is only with respect to the said sum which calculation was set out in the defendant’s submission.

The principles governing summary judgment are clear in that if there are no triable issues that the defendant could raise with respect to liability or quantum that should go for trial and if the plaintiff had complied 4 of 25 with all the preliminaries and prerequisites of having served the statement of claim and the defendant had entered an appearance and that the summary judgment application had been served with the supporting affidavit verifying the particulars of the claim and affirming that there is no defence to the claim, then the Court would allow judgment to be entered.

If triable issues are only raised with respect to part of the claim, then the Court would allow summary judgment to be entered for the part where there are no triable issues.

The principle of law with respect to summary judgment is plain to all. I need not have to go before and beyond the Federal Court case of National Company For Foreign Trade v Kayu Raya Sdn Bhd [1984] 2 MLJ 300 at page 301 where it was held that: “…We think it appropriate to remind ourselves once again that in every application under Order 14 the first considerations are (1) whether the case comes within the Order and (b) whether the plaintiff has satisfied the preliminary requirements for proceeding under Order 14. For the purposes of an application under Order 14 the preliminary requirements are:

the defendant must have entered an appearance;

(ii) the statement of claim must have been served on the defendant; and

(iii) the affidavit in support of the application must comply with the requirements of Rule 2 of the Order 14… If the plaintiff fails to satisfy either of these considerations, the summons may be dismissed. If however, these considerations are satisfied, the plaintiff will have established a prima facie case and he becomes entitled to judgment. The burden then shifts to the defendant to satisfy the Court why judgment should not be given against him [see Order 14 Rules 3 and 4(1)]. 5 of 25 … The question before us is whether the respondent by this affidavit has satisfied the learned trial Judge that a bona fide arguable defence has been raised which ought to be tried.” (emphasis added) [14] As to the approach to be taken when assessing whether an issue raised by the defendant is a triable issue we have the guidance provided by the Supreme Court in Bank Negara Malaysia v Mohd Ismail & Ors [1992] 1 MLJ 400 at page 408 as follows: “In our view, basic to the application of all those legal propositions, is the requirement under O 14 for the court 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 must necessarily depend on the facts or the law arising from each case as disclosed in the affidavit evidence before the court… 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.” (emphasis added) [15] Order 14 rule 1 and 2, Rules of Court 2012 (“ROC 2012”) provides as follows: 6 of 25

“Application by plaintiff for summary judgment (O. 14, r. 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 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.

Subject to paragraph (3), this rule applies to every action begun by writ other than—

a claim by the plaintiff for libel, slander, malicious prosecution, false imprisonment, seduction or breach of promise of marriage; or

a claim by the plaintiff based on an allegation of fraud.

This Order does not apply to an action to which Order 81 applies.

Manner in which application under rule 1 shall be made (O. 14, r. 2)

An application under rule 1 must be supported by an affidavit in Form 13 verifying the facts on which the claim, or the part of a claim, to which the application relates is based and stating that in the deponent’s belief there is no defence to that claim or part, as the case may be, or no defence except as to the amount of damages claimed.” (emphasis added) [16] The plaintiff had complied with the preliminaries and the prerequisite required under O14 r 1 and 2 of the ROC 2012 and the Court in hearing the application, if satisfied that there are no triable issues raised with respect to part of a claim, may allow judgment to be entered for that part of the plaintiff’s claim rather than the whole of it, with the balance to proceed to trial. 7 of 25 Particulars of the Plaintiff’s Claim as Verified [17] The plaintiff had entered into a Deed of Assignment dated 23.12.2012 with Petrozchem Sdn Bhd (“Petrozchem”) and with that Petrozchem transferred to the plaintiff the whole of Petrozchem’s business including all contractual rights, obligations, titles and benefits. Nothing turns on the right of the plaintiff to sue for the debt owing by the defendant to Petrozchem for the work done for or services rendered to the defendant by Petrozchem. [18] Sometime around November 2011 the defendant was desirous of constructing 3 Base Oil Tanks at its Kemayan Supply Bass at Kemayan in Terengganu Darul Iman. For business efficacy it was agreed between the parties that the defendant would issue Purchase Orders to Petrozchem or the plaintiff, depending on whether it was before or after the Deed of Assignment referred to. The plaintiff or Petrozchem would then issue Invoices to the defendant that would correspond with the percentage of works completed. [19] The work done for and services rendered to the defendant fell into 3 broad categories:

construction of 3 Base Oil Tanks;

rental of Mud Tanks by the defendant; and

additional billings incurred by the defendant. 8 of 25 Construction of 3 Base Oil Tanks [20] A summary of the Purchase Orders and Invoices issued with respect to the construction of the 3 Base Oil Tanks is found at pages 7-9 of the plaintiff’s affidavit in support. [21] On or about 9.4.2013 the plaintiff completed all construction works for Base Oil Tank No. 1 and Base Oil Tank No. 2. [22] With respect to Base Oil Tank No. 3 the plaintiff had to stop the construction works when it reached 60% as it was stopped by the defendant. [23] All in the plaintiff and Petrozchem issued Invoices amounting to RM7,475,500.00 to the defendant for the works done for the 3 Base Oil Tanks. [24] The full set of Purchase Orders and Invoices exchanges between the plaintiff and the defendant with regard to the construction of the Base Oil Tanks were exhibited in Exhibits RAR 3 at pages 69-99 of the plaintiff’s affidavit in support. [25] The plaintiff acknowledged that a sum of RM4,245,000.90 had been received from the defendant and these payments were confirmed by the defendant. There is thus an outstanding sum of RM3,220,500.00 due and owing from the defendant to the plaintiff for the 3 Base Oil Tanks. 9 of 25 Rental of Mud Tanks [26] The defendant sought quotations from the plaintiff for the renting of Mud Tanks. Upon receipts of the quotations the defendant issued Purchase Orders to the plaintiff. These quotations and Purchase Orders are particularised in the plaintiff’s affidavit in support at pages 12-14 as Exhibits RAR 4 and pages 100-204 as Exhibit RAR 12 and in the plaintiff’s affidavit in reply at pages 88-102 as Exhibit RAR 12. [27] From the Invoices for the Mud Tank Rental there is an outstanding sum of RM3,540,400.00 due and owing from the defendant to the plaintiff. Additional Billings Incurred by the Defendant [28] The defendant further requested for additional items and services from the plaintiff and these are summarised by the plaintiff as follows:

The defendant was desirous of renting 70 Tote Tanks and Tote Tank Frames from the plaintiff. The defendant issued a Purchase Order dated 18.12.2012, to which the plaintiff delivered a Delivery Order dated 18.12.2012 to the defendant. The plaintiff rented the Tote Tanks and Frames to the defendant, after which the plaintiff issued Invoice No. INV- 1354 dated 18.12.2012 for the sum of RM150,900.00 to the defendant. Of this sum, the defendant has paid the plaintiff RM150,500.00 leaving a balance of RM400.00;

The defendant was desirous of renting a Tote Tank from the Plaintiff. To this end the plaintiff delivered a Quotation dated 10 of 25

30.04.2013 to the defendant. This was accepted by the defendant. The plaintiff rented the Tote Tank to the defendant and thereafter issued Invoice No. INV-1037 dated 30.04.2013 to the defendant for the sum of RM52,800.00;

The defendant was desirous of renting a Double Decker Carrier from the plaintiff. The plaintiff rented the Double Decker Carrier to the defendant, after which the Plaintiff issued a Delivery Order dated 30.04.2013 to the Defendant, together with an Invoice No. INV-1037 for the sum of RM28,800.00 to the defendant;

The defendant was desirous of renting a Cargo Basket from the plaintiff. The plaintiff issued a Quotation dated 10.10.2014 to the defendant. The defendant thereafter delivered a Purchase Order dated 10.06.2015. The plaintiff rented the Cargo Basket to the defendant after which, the plaintiff delivered Invoice No. INV-1230 for the sum of RM492.90 to the defendant. [29] In total, pursuant to the Invoices outlined above, there is an outstanding sum of RM82,492.90 due and owing by the defendant to the plaintiff (“the Additional Invoices”). Refer: Plaintiff’s affidavit in support, Exhibit “RAR-5”, pp. 206-234. 11 of 25 Further Payments made by the defendant [30] The defendant had made the following payments to the plaintiff: No Date of Payment Amount paid by the Defendant (RM) 1 08.09.2017 125,000.00 2 20.09.2017 82,612.36 3 03.10.2017 100,000.00 4 04.10.2017 103,000.00 5 24.10.2017 187,462.06 6 29.11.2017 200,000.00 7 21.12.2017 200,000.00 8 30.01.2018 200,000.00 9 21.02.2018 200,000.00 10 28.03.2018 200,000.00 11 25.04.2018 200,000.00 12 31.05.2018 200,000.00 13 29.06.2018 200,000.00 14 31.07.2018 200,000.00 TOTAL PAID BY THE DEFENDANT TO THE PLAINTIFF (RM) 2,398,074.42 12 of 25 [31] Therefore, the total outstanding as at the date of filing of the Statement of Claim was RM4,645,318.48 made up as follows: Amount outstanding for the 3 Base Oil Tanks RM7,465,500.00 Amount paid by the defendant RM4,245,000.00 Balance for the 3 Base Oil Tanks RM3,220,500.00 Plus Amount outstanding for Mud Tanks rental RM3,540,400.00 Plus Additional Amounts Billed RM 82,492.90 Total amount outstanding RM6,843,392.90 Less amount paid RM2,198,074.42 Less amount paid after filing of Writ RM 200,000.00 Final amount claimed RM4,445,318.48 [32] A Notice of Demand was issued dated 3.5.2018 to the defendant. See plaintiff’s affidavit in support Exhibit RAR 8 pages 242-248. The defendant did not dispute the amount claimed but instead made further payments of RM200,000.00 each on 31.5.2018 and 29.6.2018. [33] The Writ and Statement of Claim were served on the defendant on 24.7.2018 and the defendant made a further payment of RM200,000.00 on 31.7.2018 some 7 days after receipt of the Statement of Claim. See the plaintiff’s affidavit of service Exhibit RAR 10 at pages 254-255. [34] The conduct of the defendant in not refuting the claims made via the Notice of Demand would be relevant as we do not expect a company to stand idly by when liability and indebtedness are alleged and more so 13 of 25 when a formal demand for payment is made. The silence is often revealing and deafening when a strenuous objection to an allegation would be expected. [35] The oft-quoted dicta found in David Wong Hon Leong v. Noorazman bin bin Adnan [1995] 4 CLJ 155, at 159, would resonate with the Court where the Court of Appeal observed as follows: "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 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 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 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 us to consider is any evidence in corroboration of the promise.' (Emphasis added). 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 14 of 25 things, the person who receives that letter must answer it if he means to dispute the fact that he did so agree. (The emphasis is ours.)" (emphasis added) [36] Though silence may not be conclusive of liability it may often take away the sting of the defendant’s defence and counterclaim. The Court would consider the explanation and defence proffered against the backdrop of a delay in responding to a formal demand made by a Notice of Demand to see if the defences are more of an afterthought. Whether the Issues raised by the Defendant are Triable Issues [37] The defendant had raised the issue of the failure of the plaintiff to obtain any Certificate of Completion and Compliance (“CCC”) for Base Oil Tanks No, 1, 2 and 3. [38] However, the defendant had expressly pleaded that for the Base Oil Tanks No. 1 and 2, there is no written requirement for the plaintiff to obtain a CCC as can be seen in paragraphs 6(b) and (f) of the Defence and Counterclaim. [39] As for the construction or Base Oil Tank No. 3 the defendant aborted the construction of it as stated in paragraph 6(k) of the Defence and Counterclaim. [40] In fact, the defendant in its affidavit in reply had exhibited its minutes in Exhibit SO 4 as follows: 15 of 25 “a. Tanks construction by Petrozchen has been completed to satisfaction and handed over to Scomi. In short term Scomi shall maintain and operate both tanks for storage of base oil to support drilling operations. For long term, if market demand for storage (sic) reduced, Scomi shall consider to rig down and de-mob 1 tank to a new location based on commercial viability. b. Stop work order has been issued to terminate any further construction. Construction materials ordered to date should be mobilized to a new location in Thailand as per item 3 below.” (emphasis added) [41] I agreed with learned counsel for the plaintiff that the defendant’s own documents and minutes clearly showed that Base Oil Tanks No. 1 and 2 were operating to the defendant’s satisfaction. [42] The defendant’s own documents and minutes reflected that it had issued a stop work order and terminated any further construction and thus the plaintiff had claimed for work completed at the defendant’s behest before the termination for Base Oil Tank No.3. [43] The defendant also sought to raise the issue of a purported revised rental rate for the Mud Tanks and that the plaintiff had overcharged the defendant. What was evident was that the defendant had earlier agreed to the quotation given before it issued the Purchase Orders. Any further attempt to vary the terms as in revising the rates downwards cannot be binding unless both parties had agreed. [44] The plaintiff had in its affidavit in reply alluded to the fact that several services were rendered by the plaintiff to the defendant without a purchase order as reflected in the Additional Invoices. The defendant did 16 of 25 not dispute that these services were rendered and in fact the defendant had made continuous payments for the said services. [45] It is only in its Defence and Counterclaim that it disputed such services were requested or rendered and thus the plaintiff had castigated it as an afterthought. Admissions by the Defendant [46] At paragraph 11(i) of the defendant’s submission in opposing the summary judgment application the defendant had stated that the amount owing for the 3 Oil Base Tanks should deduct the construction of Oil Base Tank No.3 because the materials used in the construction of the Oil Base Tank No. 3 had become scrap iron and so the sum of RM1,865,500.00 as invoiced should be disallowed. [47] Therefore the defendant argued that only a sum of RM1,355,000.00 is outstanding for this head of claim for the 2 Oil Base Tanks No, 1 and 2 as follows: Amount Invoiced RM7,465,500.00 Less Tank No. 3 RM1,865,500.00 Amount for Tanks No.1 & 2 RM5,600,000.00 Less amount paid RM4,245,000.00 Balance Outstanding RM1,355,000.00 [48] As for the rental rates of the Mud Tank the defendant argued that it should be reduced from RM12,000.00 per month to RM10,000.00 per month (not including GST). Based on this revised rental rate which the 17 of 25 defendant said the plaintiff had agreed, there had been an over-billing of RM752,600.00 as shown in Appendix A to the Defence and Counterclaim filed and so the balance outstanding for this item of rental of Mud Tank should be RM3,220,500.00 minus RM752,600.00 giving a balance of RM2,467,900,00 owing under the rental of Mud Tank. [49] The plaintiff’s version was that the quotations were first given to the defendant for the renting of the Mud Tanks and it was only after the rates had been agreed that the defendant issued the Purchase Orders and that the Invoices issued were in accordance with the Purchase Orders. The plaintiff further argued that there was no agreement to reduce the rental rates and that the documentary evidence in the quotations, purchase orders and invoices exchanged between the parties would prevail and be the governing terms of the contract in the light of sections 91 and 92 of the Evidence Act 1950. [50] The defendant further disputed some of the items in the Additional Billings on ground that there was no Purchase Orders issued by the defendant even though for the 4th item on rental of Cargo Basket there was a Purchase Order issued by the defendant and an Invoice issued by the plaintiff for RM492.90. [51] Anyway accepting the defendant’s calculation of the amount admitted to be outstanding the defendant had in its submission at paragraph 15 tabulated as follows: 18 of 25 Balance due for Oil Base Tank No.1&2’s construction RM1,355,000.00 Balance outstanding for rental of Mud Tanks RM2,467,900.00 Total owing RM3,822,900.00 Minus (-) Transport claim without Purchase Orders RM 400.00 Tote Tank rental without Purchase Orders RM 52,800.00 Double Decker Carrier rental without PO RM 28,800.00 Real Total owing RM3,740,900.00 [52] Credit must be given to learned counsel for the defendant for being candid and frank with the Court on the amount outstanding based on what her client had contended. [53] Learned counsel for the defendant had also submitted that for there to be a concluded contract for sale of goods or provision of services there must be exhibited the purchase order, delivery order, invoice and statement of accounts without which the Contract is not proved. He had referred to the case of Suara Baru Sdn Bhd v Borhill Estates Sdn Bhd [2018] MLJU 808 as authority for the above proposition as follows: “[18] The defendant submitted that the contract is in the form of the purchase orders. But what constitutes a contract in sale of goods depends on the facts of each case. Learned counsel for the plaintiff had referred to the following cases:

Caltex Oil Malaysia Limited v. Classic Best Sdn Bhd & 3 Ors [High Court Civil Appeal No. MT1-12-137-2004] where Tan Sri Datuk Suriyadi Bin Halim Omar J (now Federal Court Judge) held: 19 of 25 “In coming to a decision in cases involving goods sold and delivered such as in this case, I would place due emphasis on the written documents, namely the Statement of Accounts, Invoices, Delivery Notes and the Debit Notes. These documents would collectively constitute a contract reduced into writing. This principle had been laid down in the case of Pernas Trading Sdn Bhd v Persatuan Peladang Bakti Melaka [1979] 2 MLJ 124 where Salleh Abas FJ (as he then was), delivering the judgment of the Federal Court said, “We feel that this course of action is not open to the respondents, as it is clear that under Section 92 of the Evidence Act 1950, oral evidence to contradict, vary, add to or subtract from, the terms of any contract, grant or disposition of property which had been reduced in writing is not admissible. The sales invoice and the delivery note being the contract reduced in writing between the appellants and the respondents section 92 therefore applies.” See also YK Fung Securities Sdn Bhd v. Ronald Yeoh Kheng Hian [1989] 3 MLJ 490 where the High Court had decided that “he was subsequently furnished with the relevant monthly statement of accounts to which he had no objections, protest or queries.” [54] Learned counsel for the defendant also referred to the case of Perangsang Dagang Sdn Bhd v Tanjung Teras Sdn Bhd & Ors [2008] 2 CLJ 199 which held as follows: “[12] In cases involving goods sold and delivered, there is no one piece of agreement signed by both parties. Indeed, there is nothing of that sort. Instead, the law, through the guidance of cases, had recognised that all the documentation that accompany the day to day transactions would collectively constitute a binding contract. The documents as one would recollect from the vast number of cases are Delivery Orders, Delivery Notes, Invoices, Statement of Accounts and Debit Notes.....” 20 of 25 [55] He further reinforced his submission by referring to the case of CFB Aluminum Extrusion Sdn Bhd v Lim Soon Seng [2014] 1 LNS 1311 where the High Court held as follows: “Generally, it is plain that the seller in a claim for payment for goods sold and delivered must prove that the order was made and the goods were received by the buyer. The proof is commonly by way of producing in court the purchase order, delivery order and the invoice for the goods (“the key documents”).” (emphasis added). [56] I do not read the cases as setting out the above proposition. All that the cases referred to say is that the Court would look for documents such as delivery orders, delivery notes, invoices, statement of accounts and even debit notes if there are to prove the claim for goods sold and delivered or services rendered. By no means do the cases enunciate as a proposition of law that all the documents must of necessity be present before one can successfully prove such a contract. The emphasis as shown by the cases is that the Court would look to the written documents exchanged between the parties such as the delivery orders, delivery notes, invoices, statement of accounts and even debit notes to ascertain if a contract had been concluded and the terms. [57] Granted that previous transactions had always been preceded by a Purchase Order issued by the defendant before the services were rendered or goods supplied, the disputed Invoices not preceded by Purchase Orders should proceed to trial as a triable issue had been raised on whether there was an agreement reached on the terms of the contract. [58] Learned counsel for the defendant in her submission at paragraph 17 had stated as follows: 21 of 25 “...The Defendant did not deny that it is indebted to the Plaintiff. The Defendant only disputed few items which the Plaintiff are not entitled to claim and the Defendant is seeking this Honourable Court to intervene and assist the parties to finalise the amount owing by the Defendant to the Plaintiff.” [59] I accept the fact that all that the defendant needed to do to oppose the summary judgment was to raise in its affidavit only one bona fide triable issue as was held by the Court of Appeal in Azlin bin Khalid v Mohamad Najib Ishak and other appeals [2017] MLJU 1522 as follows: “[29] We do not intend to respond item by item to the grounds raised by learned counsel for the defendants. It is well established that among the principles applicable for summary judgment is that if the affidavits filed by a defendant raises one bona fide triable issue, then the suit between the parties should proceed to a full-blown trial. At this stage, the defendants need to prove their defences. All that is required is to raise a triable issue.” (emphasis added). [60] However here it is a case where liability and debt are not disputed but the amount is. [61] Based on the clear and unequivocal admissions as reconciled from both the calculations of the plaintiff in paragraph [31] above and the defendant’s calculation of the amount owing in paragraph [47], both parties having taken into consideration the same various amounts paid so far, I had allowed summary judgment for the sum of RM3,740,900.00 together with interest at 5% per annum from the date of the Writ of Summons 20.7.2018 to realization and costs of RM2,500.00. 22 of 25 [62] The balance shall proceed to trial and as the balance of the claim of about RM704,418.48 and the counterclaim may then be within the jurisdiction of the Sessions Court, I had asked the plaintiff to file an application to transfer the proceedings to the Sessions Court if minded to. Application to Transfer to the Sessions Court [63] The plaintiff duly filed its application in Enclosure 19 for transfer to the proceedings to the Sessions Court. [64] When the matter was called up on 5.10.2018 for hearing of the application for transfer I had asked learned counsel for the defendant if he had any objection to which he confirmed that he had no objection. [65] I had then made an order for transfer of the proceedings to the Sessions Court with no order as to costs. The minutes of the hearing on 5.10.2018 reads as follows: “11.26 am - 11.29 am Duration: 3 minit Gavin Jayapal for P Ros Shimah for D Enc 19 P’s application for transfer of matter to Sessions Court as the balance claim and CC is within the Sessions Court jurisdiction. D consents. OIT of application and no order as to costs.

11.29 am” 23 of 25 [66] I was not unaware that the defendant’s quantified counterclaim appeared to be about RM1,353,700.00 as originally pleaded but in the light of the candid admission made by its learned counsel in her submission that the dispute was then confined to some items that the defendant was disputing with respect to a lack of purchase orders to support the plaintiff’s claim and hence very much the flip side of its Defence, I had given time to learned counsel for the defendant to take instruction from her client. [67] I had after granting summary judgment on 2.10.2018 fixed 5.10.2018 for learned counsel for the defendant to take instruction from her client the defendant to gauge its seriousness in pursuing the counterclaim in the High Court or that the Defence and Counterclaim may well be heard in the Sessions Court with a view to saving costs. [68] It was still open to the defendant to object to the transfer if it was minded to. However as learned counsel had no objection to the transfer there was nothing preventing the High Court from transferring the proceedings to the Sessions Court. [69] This would free the High Court to focus on the complicated and convoluted cases where the disputes involved claims and counterclaims above RM1 million. The High Court would not be freer just because a case is transferred down to the Sessions Court but that it would be equally busy with hopefully more time to focus on resolving the more intractable disputes before it. 24 of 25 [70] Moreover section 66(1) of the Subordinate Courts Act 1948 provides as follows:

“Counterclaims in Sessions Courts and transfers therefrom

Where in any action or suit of a civil nature before a Sessions Court any defence or counterclaim of the defendant involves matters beyond the jurisdiction of the Court, the defence or matter shall not affect the competence or the duty of the Sessions Court to dispose of the whole matter in controversy, so far as relates to the demand of the plaintiff and any defence thereto, but no relief exceeding that which the Court has jurisdiction to award shall be given to the defendant upon the counterclaim.” [71] It is also open to the defendant to relinquish any portion of its claim in order to bring the action or suit within the jurisdiction of the Sessions Court as provided in section 67 of the Subordinate Courts Act 1948 as follows:

“Relinquishing part of claim A plaintiff may relinquish any portion of his claim in order to bring the action or suit within the jurisdiction of the Sessions Court, but he shall not afterwards sue in respect of the portion so relinquished.” 25 of 25 [72] Taking into consideration the reasons given above I had allowed the application for transfer of the proceedings to the Sessions Court with no order as to costs. Dated: 5 October 2020. Sgd LEE SWEE SENG Judge Construction Court High Court in Malaya Kuala Lumpur For the plaintiff : Gavin Jayapal (Messrs Gavin Jayapal) For the defendant : Ros Shimah Binti Nazri (Suhaidi Yusoff & Partners) Date of Decision : 2 October 2018 for Enclosure 9 and 5 October 2018 for Enclosure 19.