Selangor Industrial Corporation Sdn. Bhd. v Hadhari Resources Sdn. Bhd. (WA-22NCC-641-09/2023)

ANIS AZLINA BINTI AHMAD FUAD …DEFENDANTS

The Plaintiff applies for summary judgment to be entered against the Defendants.

The First Defendant had ordered goods and items from the Plaintiff as seen in the Purchase Orders No. PO/HRSB/JKR_JB-108 and PO/HRSB/JKR_JB-109 dated 7-9-2022 and 26-9-2022. This could be seen in Exhibit Nl-1 of the Plaintiff’s affidavit in support.

The items were ordered by the First Defendant and delivered by the Plaintiff as seen in Exhibit NL-3. The Defendants did not deny that the goods were delivered as instructed by the First Defendant.

The Second and Third Defendants did provide a guarantee and indemnity for the debts and obligations of the First Defendant as seen in the Guarantee and Indemnity executed by them in favor of the Plaintiff dated 17-8-2022. The material terms of which are as follows: -

Invoices for the goods supplied have been delivered to the First Defendant and remain unpaid. This led the Plaintiff to issue a notice of demand dated 19-4-2023 demanding payment for the invoices due to the sum of RM 1, 327, 493.90 as of 5-4-2023. The certificate of posting of the demand was shown by the Plaintiff in its affidavit in reply. I find that the said demand was issued and served on the First Defendant as alleged by the Plaintiff.

The Plaintiff however did not exhibit any evidence of any notice of demand against the 2nd and 3rd Defendants. B. Applicable law

The applicable law concerning a summary judgment application is also trite.

I summarise the legal position as follows: -

The application for a summary judgment application is based on the pleadings and the affidavit evidence presented by both the Plaintiff and the Defendant.

(ii) This Court should not enter judgment against the Defendant if it finds that the defence or issue or question in dispute between parties that ought to be tried or that there ought for some other reason to be a trial of the claim or part of the claim. This Court must analyse the affidavit evidence of both parties.

(iii) Generally, in the normal way, it is not appropriate for me to resolve conflicts of evidence on affidavit alone but where such statement or assertion, denial or dispute is unequivocal or lacking in precision or is inconsistent with undisputed contemporary documents or statements then I am duty-bound to reject them and enter judgment.

(iv) This power should be exercised by me in a very clear case where the defence and affidavit filed in opposition do not show any bona fide defence and there are no real issues to be tried.

If a Defendant even raises a single triable issue, it will not be a fit and proper case for summary judgment.

(vi) If this Court finds that the Defendant has shown a defence that does not amount to a fair probability of a bona fide defence, but only that the defence raised is not hopeless, the Court may impose conditional leave to defend.

For a party to successfully obtain an order for summary judgment, it must be shown to the Court that the Defendants have no defence to a claim.

The above legal position can be gleaned from the plethora of cases within our jurisdiction. For our purposes I refer to the decision of Mohamad Azmi SCJ (as His Lordship then was) in Bank Negara Malaysia v Mohd Ismail [1992] 1 CLJ 627 (parts of the judgment of his Lordship reproduced in the summary), South East Asia Insurance Bhd v Kerajaan Malaysia [1998] 1 CLJ 1045 and Ng Hee Thoong v Public Bank Berhad [1995] 1 CLJ 609. I also refer to the decision of the Singaporean Court of Appeal in Akfel Commodities Turkey Holding Anonim Sirketi v Townsend, Adam [2019] SGCA 43. C. Decision of this Court

I find that the Defendants have shown that there is bona fide defence to the claim against the 2nd and 3rd Defendants only. The Plaintiff has failed to show in the affidavit evidence filed before this Court that the notice of demands was issued to the 2nd and 3rd Defendants to invoke the applicability of the amount claimed against the said Defendants according to the Guarantee provided by them.

Concerning the 1st Defendant, I find that the defences raised by the 1st Defendant are as follows: -

That the claim stated in paragraph 11 of the claim does not tally with the figures at exhibit NL-2.

(ii) That the invoices were not received by the 1st Defendant.

(iii) That the interest of 1.5% per annum was not agreed to by the Defendants.

(iv) That the demands were not received by the 1st Defendant.

After considering the said defence raised, I find that these issues did not amount to a fair probability of a bona fide defence, but only that the defence raised is not hopeless and should be determined at trial.

The Plaintiff has shown that the invoices were sent to the First Defendant after the goods were delivered following the terms of their orders earlier. The evidence that these invoices were sent can be seen in Exhibit NL-7 and Exhibit NL-8.

I also find that the interest amount was also stated in the said invoices and was not rejected by the First Defendant at any material time.

However, in view of the denials by the First Defendant and the defences raised by the Second and Third Defendants, I believe this is a suitable case for a conditional leave to defend be entered against the First

Defendant only and that the sum of RM 1, 400, 518.87 and RM 157, 40 be paid within 30 days from the date of this order failing which judgment be entered against the First Defendant.

This does not apply to the Second and Third Defendants. The said Defendants are given leave to defend the suit without any condition as they have shown a triable issue as to whether the terms of the Guarantee have been complied with by the Plaintiff against them. D. Orders of this Court

Conditional leave to defend be given against the First Defendant subject to payment of RM 1, 400, 518.87 and RM 157, 772.40 be paid within 30 days failing which judgment be entered against the First Defendant.

Leave to defend be granted to the Second and Third Defendants without any condition.

Costs in the cause. Dated 6th May 2024 Dato’ Indera Mohd Arief Emran bin Arifin Judge High Court of Malaya Kuala Lumpur NCC5 Muhammad Imran bin Abu for the Plaintiff