SMFL Hire Purchase (Malaysia) Sdn Bhd v Linsun Trans Energy (M) Sdn Bhd & 3 Lg (WA-22NCC-129-04/2018)

LINSUN TRANS ENERGY (M) SDN BHD (No Syarikat: 784478-V)

NATARAJEN A/L MANOHRAN (No. K/P: 820503-05-5673)

ROSITA ANAK NYAPUK (No. K/P: 800503-13-5392)

LINSUN ENGINEERING SDN BHD (No. Syarikat: 678161-V) … DEFENDANTS

This case concerns an application by the Plaintiff for summary judgment against the Defendants. I have allowed the summary judgment partially. These are the full reasons for my decision. 2

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All the said Hire Purchase Agreements are hereinafter referred to as “the said Hire Purchase Agreements”. 9

It is part of the terms and conditions of the said Hire Purchase Agreements that the 1st Defendant is liable to pay overdue interest at the rate of 0.1% per day calculated on daily basis until full settlement.

The 1st Defendant failed to pay the monthly instalments for the said Hire Purchase Agreements and has breached the said Hire Purchase Agreements. The Plaintiff suffered the following losses as at 31.12.2017 as a result of the 1st Defendant’s said breach:

RM89,011.36 in respect of the 1st HPA;

RM158,069.83 in respect of the 2nd HPA;

RM164,937.21 in respect of the 3rd HPA;

RM170,272.94 in respect of the 4th HPA;

RM114,918.41 in respect of the 5th HPA;

RM81,754.76 in respect of the 6th HPA;

RM111,112.65 in respect of the 7th HPA;

RM109,952.65 in respect of the 8th HPA; and

RM117,655.19 in respect of the 9th HPA. 10

The Plaintiff had vide its solicitors’ letters dated 20.3.2018 demanded for the amount due and owing but the Defendants have failed, refused and/or neglected to pay the said outstanding sum.

Vide a letter dated 31.5.2018, the Defendants’ solicitors have informed the Plaintiff and this Court that they will be relying on their Statement of Defence as their reply to the Plaintiff’s Application for Summary Judgment.

This is an application for summary judgment under Order 14 of the Rules of Court 2012 (ROC 2012). It is established law that once an Order 14 application is demonstrated to be properly filed, the burden shifts and rests on the Defendant who seeks to resist the application to raise a defence which shows a “ bona fide triable issue”, in the sense of an issue which justifies and warrants the matter to be considered at a full trial. 11

This is in keeping with the requirements of Order 14 r 3 of the ROC 2012 which provides that unless the Defendant satisfies the Court with respect to the claim, or part of a claim, to which the application relates that : i) There is an issue or question in dispute which ought to be tried; or ii) There ought for some other reason to be a trial of that claim or part thereof; and iii) The Court may give such judgment for the Plaintiff against the Defendant on that claim or part as may be just having regard to the nature of the remedy or relief claimed.

In the often quoted decision of the former Supreme Court in National Company For Foreign Trade v Kayu Raya Sdn Bhd [1984] 2 MLJ 300 it was authoritatively ruled as follows: “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 12 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; The statement of claim must have been served on the Defendant; and The affidavit in support of the application must comply with the requirements of Rule 2 of 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.”

In this case, the Plaintiff has satisfied these preliminary requirements and this is not disputed by the Defendant. The burden is now firmly on the Defendant to show one or more triable issues that does not justify summary judgment to be entered against the Defendant. If the Defendant can show even one triable issue, this Court will not grant summary judgment. But it has to be a genuine triable issue. As stated by the Federal Court in Voo Min En & Ors v Leong Chung Fatt [1982] 2 MLJ 241, it is not enough for a defendant to raise an issue or 13 any issue. The defendant must instead raise such an issue as would require a trial in order to determine it.

I would also like to refer to the leading judgment of the former Supreme Court on summary judgment applications in Bank Negara Malaysia v Mohd Ismail & Ors [1992] 1 MLJ 400 which held as follows: “In an application under O. 14, the court has 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 depends on the facts or the law arising from each case as disclosed in the affidavit evidence before the court. A complete defence need not be shown. The defence set up need only show that there is a triable issue. 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. Unless this principle is adhered to, a judge is in no position to exercise his discretion judicially in an O 14 application.” 14

At the outset, it is settled law that the defendants need not file an affidavit in reply to the summary judgment application. They can rely on the Defence to show the existence of triable issues.

In Public Bank Berhad v Datuk Mohd Ali Hj Abdul Majid & Anor [2011] 1 LNS 1904, the Court of Appeal said this: “In the court below, in resisting the application for summary judgment, the Respondents did not file any affidavit in reply, a point that was observed by the learned Judge (see 131AR). Order 14 rule 4(1) of the Rules of the High Court 1980 provided that “A defendant may show cause against an application under rule 1 by affidavit or otherwise to the satisfaction of the Court.” In Alliance (Malaya) Engineering Co Sdn Bhd v San Development Sdn Bhd [1974] 2 MLJ 94, where in resisting the application for summary judgment the defendants did not file an affidavit in reply, the former Supreme Court per Gill CJ (Malaya) conveyed that the defendants “had (therefore) to rely entirely on what was stated in their statement of defence.” And in Gissco Sdn Bhd v Blackgold (M) Sdn Bhd [1988] 2 MLJ 397, where again there was no affidavit in reply to resist the application for summary judgment, Tan Chiaw Thong J nonetheless considered the defence.”

I will now deal with the issues raised by the Defendants. 15

In this case, the Plaintiff has complied with the preliminary requirements set out in Order 14 and it is for the Defendants to show the existence of one or more triable issues. It is not for the Plaintiff to show that there are no triable issues.

The first issue raised by the Defendants is that the Hire Purchase Act 1967 applies and the provisions of the said Act had not been complied with. The effect of non-compliance with the statutory requirements was set out in Halsbury’s Laws of England 3rd Ed. Volume 19 at page 528 as follows: “849. Effect of non-compliance with statutory requirements If the statutory requirements (r) are not complied with, the owner (or seller) is not entitled to enforce the hire purchase (or credit sale) agreement, or any contract of guarantee relating thereto, and no security given by the hirer (or buyer) in respect of money payable under the hire purchase (or credit sale) agreement or given by a guarantor in respect of money payable under such a guarantee is enforceable against the hirer (or buyer) or the guarantor by any holder thereof (s). In the case of a hire purchase agreement, a failure to comply with these requirements also disentitles the owner from enforcing any right to recover the goods from the hirer (t)”. 16

The Plaintiff has submitted that the Hire Purchase Agreements do not involve the goods listed in the First Schedule of the Hire Purchase Act 1967. As such the Hire Purchase Agreements are not governed by the Hire Purchase Act 1967.

Section 1(2) Hire Purchase Act 1967 which provides the following: “Section

Short title and application.

This Act shall apply throughout Malaysia and in respect only of hire-purchase agreements relating to the goods specified in the First Schedule.”

First Schedule of the Hire Purchase Act 1967 provides: “Section 1

List of Goods All consumer goods;

Motor vehicles, namely-

Invalid carriages;

Motor Cycles;

Motor Cars including taxi cabs and hire cars; 17

Good Vehicles (where the maximum permissible laden weight does not exceed 2540 kilograms);

Buses, including stage buses.”

The Plaintiff submits that the goods in the Hire Purchase Agreements are not listed in the First Schedule of the Hire Purchase Act 1967.

The First page of all the Hire Purchase Agreements reads as follows: “Hire Purchase Agreement (For Non Schedule Goods Only)”

In MBF Finance Bhd v Low Ping Ming t/a Low Peng Enterpirse [2005] 3 MLJ 208 the Court of Appeal held: “...In the case of goods not in the First Schedule to the Act it only means that no provision has been made by any written law with regard to them. The common law will therefore continue to be applied to such goods. It follows that there can be valid hire purchase agreements in respect of goods not in the First Schedule to the Act. It would be appropriate for the parties to set out 18 the terms and conditions governing the transactions in such hire purchase agreements...”

In MBF Finance Berhad v Ting Kah Kuong & Anor [1993] 3 MLJ 73 the Court held: “The defence of the defendants raises also the issue involving the interpretation of various laws. I will now dispose the matter and decide whether there is any triable issue raised by the defendants to disentitle the plaintiff for a summary judgment under O 14 of the RHC on this issue of law. Firstly, the plaintiff maintains principally that the agreement is not subject to the Act as the said goods are not goods as specified in the First Schedule to the Act to resist the defence that the agreements is void and unenforceable owing to various non-compliances with the provisions of the Act. If the agreement is not governed by the Act then the various defences of the defendants become non-issue. According to s 1(2) of the Act, it is applicable only in respect of hire-purchase agreements relating to the goods specified in the First Schedule. The two unit planers, one unit scraper machine, two units automatic turning lathe are clearly not within the First Schedule. What is left is therefore the four units forklifts. The plaintiff says that they are not motor vehicles as listed in the First Schedule but the defendants say they are. According to the First Schedule, the motor vehicle, in as far as this matter before the court is concerned must be goods vehicle (where the maximum permissible laden weight does not exceed 50 cwts)... 19 ...It is clear from the reply received from the road transport authority that a forklift is not a motor vehicle. Since it is not a motor vehicle, the question of its laden weight does not any longer arise for determining whether or not the four units forklifts included in the said goods are items within the First Schedule to the Act. They are not, and therefore the agreement is not caught by the Act. That being the position, the various defences by the defendants concerning the Act become non-issue”.

The Defendants allege that the prime movers and/or trailers which are the subject matter of the Hire Purchase Agreements come within the definition of goods vehicles (where the maximum permissible laden weight does not exceed 2540 Kilograms) and that the Plaintiff has not shown that the weight of the goods which are the subject matter of the Hire Purchase Agreements exceeded 2540 Kilograms.

I am of the view that this is not a triable issue. To show a triable issue, the Defendants must show some evidence that the weight of the goods do not exceed 2540 kilograms. It is not for the Plaintiff to show that the weight of the goods exceed 2540 kilograms. This is because the burden is on the Defendants to prove a triable issue. In this instance, the Defendants have failed to show a triable issue because 20 there is no evidence that the weights of the goods are less than 2540 kilograms.

Secondly, the Defendants allege that the Plaintiff has failed to specify under what circumstances it was entitled to terminate the Hire Purchase Agreements and repossess the goods. The relevant provision is clause 13.1 of the Hire Purchase Agreement which sets out 12 events for termination of the agreement as follows:

“default in payment of any other sum due under this

“if the Hirer shall fail to observe or perform any of the other terms and conditions of this Agreement”; or

“the owner shall on any reasonable ground consider itself insecure”; or

“any insurance policy in respect of the goods be cancelled”;or

“any winding-up petition shall be filed against the Hirer or

“Shareholder(s) of the Hirer shall pass a resolution for voluntary winding-up (otherwise than by way of 21 amalgamation or re-construction) or shall make any arrangement with its creditors”; or

“any judgment against the Hirer or Shareholder(s) of the Hirer shall remain unsatisfied for more than fourteen days”; or

“any cheque given by the Hirer as or part of the Deposit is dishonoured”; or

“any goods sold by the Hirer as or as part of the said deposit to the owner”; or

“the dealer are found not to be the Hirer’s absolute unencumbered property (sic)”; or

“execution or distress is levied against the Hirer or his assets or property”; or

“if the Hirer being a company, a receiver and/or manager is appointed over any part of the Hirer’s assets or property”. then and in any of the said events the owner shall be entitled to immediate possession of the Goods....”

This issue is without substance. In paragraph 15 of the Statement of Claim, the Plaintiff has pleaded that the 1st Defendant has failed to 22 pay the instalments under the Hire Purchase Agreements and had defaulted in respect of the Hire Purchase Agreements. The Plaintiff has specified the breach of the Hire Purchase Agreements on the part of the 1st Defendant.

The Defendants also allege that the Plaintiff has not pleaded the estimate value of the goods at the date of repossession and what was the best price that was reasonably obtainable at the time of their sale.

I am of the view that this is not a triable issue. There is no obligation imposed on the Plaintiff under the Hire Purchase Agreements to notify the 1st Defendant of the value of the goods at the date of repossession or the price obtained on the sale of the goods. In any event, the sale price of the goods had been set out in the statement of claim and in the affidavit in support of the summary judgment application.

It is significant to note that the Defendants have not pleaded that the goods which were repossessed were not sold at the best price reasonably obtainable. 23

The next issue raised by the Defendants is whether the Hire Purchase Agreements are unregistered bills of sale in which title to the goods had already passed to the 1st Defendant prior to the execution of the Hire Purchase Agreements.

In support of this issue, the Defendants have merely pleaded the dates when the goods were registered in the name of the 1st Defendant and the dates of the execution of the Hire Purchase Agreements. That was all. They then submitted during the summary judgment application that the 1st Defendant was already registered as the owner in the registration cards at JPJ before the Hire Purchase Agreements were executed. As such the Hire Purchase Agreements were in truth unregistered bills of sale and therefore void.

I find that this issue has not been properly pleaded by the Defendants. They did not plead that title to the goods has already passed to the 1st Defendant before execution of the Hire Purchase Agreements and accordingly the Hire Purchase Agreements are in truth unregistered bills of sale. I am of the view that if the Plaintiff had realised what legal point the Defendants are really relying upon, the 24 Plaintiff could have produced relevant evidence perhaps to rebut this point. As it is, the Plaintiff did not deal with this point in any way whatsoever. In the Court of Appeal case of Ribaru Bina Sdn Bhd & Anor v Bakti Kausar Development Sdn Bhd & Anor [2007] 2 MLJ 221, Gopal Sri Ram JCA has held as follows: “To raise triable issues by way of submission on a point not raised in a defence or an affidavit would not, in our judgment, meet the requirements of procedural fairness which is the essence of any litigation. In the present case, we are of the opinion that the learned judge ought not to have taken any notice of the submission on the privity of contract point as it had not been raised in the affidavit or the defence.”

In case I am wrong in holding that the issue should not be considered, I will proceed to consider it. In support of their contention, the Defendants relied on the following authorities.

BSNC Leasing Sdn Bhd v Sabah Shipyard Sdn Bhd & Ors [2002] 2 CLJ 197 where the Court of Appeal said: “In 1995, Sabah Shipyard Sdn Bhd (“Sabah Shipyard”) purchased a turbine from Wing Teik Holdings Berhad (“Wing Teik”) for RM49 million and paid the latter RM20 million as part payment thereof. The turbine 25 was to be affixed to a power barge (“Victoria II”) which Sabah Shipyard undertook to construct and sell to a third party. Subsequently, to raise the balance purchase sum, Sabah Shipyard approached BSNC Leasing Sdn Bhd (“BSNC Leasing”) and executed a hire-purchase agreement (“the agreement”) with the latter. By the agreement, Sabah Shipyard took the turbine on hire purchase from BSNC Leasing, the purported owner of the turbine, for RM29 million, while BSNC Leasing would pay Wing Teik the balance purchase price of RM29 million.” Sabah Shipyard defaulted in the payments under the agreement and BSNC Leasing applied for an order to repossess the turbine. The application, however, was dismissed by the learned judge on 21 May 1999 on the grounds that: (i) the property in the turbine had remained with Sabah Shipyard and never passed to BSNC Leasing; and (ii) the agreement was a device to cloak a loan transaction, was in truth an unregistered bill of sale and was void against Sabah Shipyard by reason of s. 108 of the Companies Act 1965.” “To succeed in its application for re-possession, BSNC Leasing had to demonstrate that the property in the turbine had passed to it before it entered into the hire purchase agreement with Sabah Shipyard. Only on that basis could it be argued that there was a genuine hire purchase transaction.” 26 “Weng Teik and Sabah Shipyard did not express any intention as to when property in the turbine will pass. Neither is there any form of conduct or circumstances from which such intention is to be deduced. This being the case, the rules expressed in s. 20 of the Sale of Goods Ordinance 1957 applies with full force. Accordingly, the property in the turbine passed from Wing Teik to Sabah Shipyard when the contract was made. There is as found by the learned judge no evidence to show any sale either by Sabah Shipyard or Wing Teik to BSNC Leasing. The property in the turbine therefore remained at all material times with Sabah Shipyard.” “In short, the hire-purchase agreement was an unregistered bill of sale. Not being in the statutory form, it was non-registrable and was therefore void. Accordingly, the learned judge was entirely correct in dismissing BSNC Leasing summons for leave to re-possess the turbine.”

(ii) Arab-Malaysian Finance Berhad v Borneo Wood (Sabah) Sdn Bhd & 2 Ors [2007] 1 LNS 624 where the High Court said: “[24] Since “properties and titles” to the subject machineries had already passed to the 1st Defendant on 21.8.1995 before the signing of 27 the alleged HP Agreements both dated 12.2.1995, the Court is of the view that the transaction between the Plaintiff and the 1st Defendant could not have been hire-purchase transaction.”

(iii) United Overseas Bank (Malaysia) Bhd v Daya Nuri Sdn Bhd & 2 Others D8-22-1247-Tahun 2003 where the High Court said: “[3] See Section 3 definition of “bill of sale” – “includes the agreements for the hire of personal chattels entered into for the purpose of securing the repayment to the lessor of such chattels of money advanced by him to the hirer; and the hirer shall in every such case be deemed to be the grantor of the bill of sale and the lessor shall be deemed to be grantee thereof”. The goods were purchased by the 1st defendant initially at all times; invoices were issued to the 1st defendant and the 1st defendant paid the initial payment to the seller of the goods. There were no invoices or documents to show ownership of goods by the plaintiff in the bundle of documents or even in the trial. So the plaintiff was never the owner of the goods such that it could not hire the goods on hire-purchase to the 1st defendant”. “[4] As the Bills of Sale were never registered it is in each case void and unenforceable”. 28

(iv) Hap Seng Credit Sdn Bhd v Mohamed A Ralim & 2 Others [2015] 1 LNS 1227 where the High Court said: “Hire-purchase is thus a type of contract of purchase where the financier or owner lets the goods or assets to the hirer or buyer for an agreed period in return for instalment payments. The former continues to own the asset until the latter makes the final payment, and retains the right to repossess on any breach by the hirer despite possession being given to the hirer (see Credit Corporation (M) Bhd v The Malaysian Industrial Finance Corp & Anor [1975] 1 LNS 22; [1976] 1 MLJ 83 and Tractors Malaysia Bhd v Kumpulan Pembinaan Malaysia Sdn Bhd [1978] 1 LNS 220; [1979] 1 MLJ 129). If the property in the asset passes at the time of the execution of agreement or upon its delivery, the transaction would fall instead under the Sale of Goods Act 1957 and is a credit sale. Thus in a loan situation the purchaser borrows, pays for the asset and owns it immediately”.

Firstly, since the Defendants did not exhibit the relevant registration cards there is no evidence in respect of the dates of registration of the trailers. A plea in the Defence is not evidence.

Furthermore, I am of the view that the registration of the 1st Defendant’s name on the registration card does not necessarily mean 29 that the 1st Defendant is the legal owner of the goods in question. In Credit Corporation (M) Bhd v The Malaysia Industrial Finance Corporation & Anor [1976] 1 MLJ 83 the Court said: “Miss Chen Kah Leng quite rightly pointed out that possession of the registration book was properly secured by the hirer under the plaintiffs’ agreement. Even though the hirer was the registered owner of the motor-car, he was only in law, the person who had possession and use of the car and this fact does not necessarily make him the legal owner of the car”.

Also, in respect of each Hire Purchase Agreement, the 1st Defendant and the Plaintiff have executed a Memorandum in respect of the payment made by the 1st Defendant to the supplier of the goods. This confirmed that the payment made by the 1st Defendant as hirer is not payment for any contracts whatsoever between the 1st Defendant and the supplier but as part of the down payment defined in the Hire Purchase Agreement.

The 1st Defendant also confirmed that although the 1st Defendant has rights and interests caused from the down payment defined in the Hire Purchase Agreement, the 1st Defendant does not have any rights and interests between the 1st Defendant and the supplier. Both parties 30 confirmed that the title to the goods shall be retained by the Plaintiff until the 1st Defendant makes a full payment of the contract amount and shall be transferred to the 1st Defendant upon the full payment.

From the Memorandum it is very clear that the 1st Defendant has acknowledged that title to the goods is retained by the Plaintiff at all material times and certainly as at the date of execution of the Hire Purchase Agreements. The 1st Defendant has no title to the goods. The parties also executed a Memorandum which provided that the 1st Defendant shall return the Registration Card to the Plaintiff upon completion of the PUSPAKOM inspection or renewal of road tax and that the Plaintiff shall reserve the right to retain and withhold the Registration Card if the 1st Defendant failed to fulfil its obligations under the Hire Purchase Agreements or the Memorandum. Accordingly, I am of the view that this issue is not a triable issue.

The next issue raised by the Defendants is that the 1st HPA to 5th HPA are in respect of 2 items, namely, the prime mover and the trailer. It is contended that a genuine Hire Purchase Agreement should only cover 1 item and not more than 1 item. 31

In support of this contention, the Defendants relied on the case of Arab-Malaysian Finance Bhd v Borneo Wood (Sabah) Sdn Bhd & Ors [2008] 10 CLJ 68 where the Court said as follows: “[37] The finding that the transaction between the plaintiff and the 1st defendant was not in fact hire-purchase transaction can further be fortified by the indisputable fact that, in the agreement marked as exh. “P10C”, the subject machineries were expressly stated as “Three units of Ponysaw” each bearing a different serial number and of different models. [38] A genuine hire-purchase agreement should only contain one good and not three goods cumulatively as in exh. “P10C” for otherwise, the hirer will be deprived of the option to purchase the goods item by item rather than cumulatively. [39] Section 4D, Hire-Purchase Act 1967, reads as follows:

There shall be a separate hire-purchase agreement in respect of every item of goods purchased under this Act;

A hire-purchase agreement that does not comply with sub-section

shall be void. 32 [40] While the subject machineries were not within the ambit of the Hire-Purchase Act 1967, the Act, is nonetheless a codification of the relevant common laws in the material aspect and, thus, a genuine HP Agreement should concern only one good and not three goods cumulatively.

I find that there is merit in this issue. Since the 1st HPA to the 5th HPA are in respect of 2 items of goods each, there is a triable issue whether they are genuine Hire Purchase Agreements.

The next issue raised by the Defendants is that in respect of the 2nd, 3rd and 4th HPA, although the prime movers were repossessed, the trailers were not repossessed. The Defendants allege that the sums claimed by the Plaintiff did not make it clear whether they were claimed in respect of only the prime mover or in respect of both the prime mover and the trailer. The Defendant also said that there is no evidence as to whether the Plaintiff has made a claim against the insurance in respect of the unrepossessed trailers. Now there is no issue about the Plaintiff making any sort of an insurance claim as the trailers have not been lost. They were simply not repossessed. I find that there is no obligation on the part of the Plaintiff to repossess the goods. Clause 13.4 of the Hire Purchase Agreement provides that if the Owner shall for any reason whatsoever be unable to unwilling to take possession of the Goods upon 33 the occurrence of any of the events set out in clause 13.1, the Owner shall be entitled at its option, in lieu of resuming possession of the Goods to recover on demand from the Hirer the net amount outstanding under this Agreement.

Since the trailer has not been repossessed, the costs of repossession set out in the statement of account of the Plaintiff obviously only refers to the costs incurred in relation to the prime mover and not in relation to the trailer which was not repossessed. This does not constitute a triable issue.

The following cases are relevant: i) HSBC Bank Malaysia Bhd v LH Timber Products Sdn Bhd & Ors [2005] 6 MLJ 625 wherein the Court held: “[34] So, i t can readily be surmised that the hire purchase facilities granted to the first defendant were subject to the terms and conditions of the said agreements and no t governed by the Hire-Purchase Purchase Act 1967 (Act 212). Now, according to the terms and conditions of the said agreements, the plaintiff has no duty to discharge by repossessing the said goods. There was no duty imposed on the 34 plaintiff to repossess the said goods and, consequently, the issue of repossessing the said goods and the issue of mitigation did not arise at all. Clause 15.3 of the said agreements state as follows: If the owner shall for any reason whatsoever be unable or unwilling to resume possession of the goods of the owner shall be entitled at its option, in lieu of resuming possession of the goods, to recover from the hirer the unpaid balance of the hire purchase price less rebate (if any) plus all other sums payable under this agreement. [35] This meant that by virtue of clause 15.3 of the said agreements the plaintiff have a discretion whether to repossess the said goods or not. And if the plaintiff has no intention of repossessing the said goods, the plaintiff was entitled to recover from the hirer – referring to the first defendant, the unpaid balance of the sums owing. The plaintiff was also entitled to recover the unpaid sums from the defendants who were the guarantors. [36] Reference of cl 15.2 of the said agreements should be made. There, it imposed the duty on the part of the first defendant to return the said goods when the said agreements were terminated. Clause 15.2 of the said agreements state as follows: Upon termination pursuant to sub-clause I above the hirer shall forthwith deliver up possession of the goods to the owner at the 35 address specified herein or at such other address as the owner may specify in writing and the hirer shall also return to the owner... [37] Legally speaking the law may be stated as follows. That the owner of the goods has no responsibility to reduce his damages especially when such goods are not subject to the Hire-Purchase Act 1967 (Act 212)...” ii) Kesang Leasing Sdn Bhd v Longwood Sdn Bhd & Ors [1988] 2 MLJ 328 wherein the Court held: “I now turn to the complaint that the plaintiff had not mitigated the damages in that they had not repossessed the tractors. I see no basis for that complaint. It does not provide the defendants with a triable issue.” iii) Arab Malaysian Finance Bhd v Hasliza Hasan [2001] 6 CLJ 137 wherein the Court held: “Held: [1d] Repossession of the hired vehicle is not a sine quo non for the plaintiff (owner) to file his suit against the defendant in the lower court to recover moneys due under the hire-purchase agreement. 36 ... [3] It is also the opinion of the court that it would be contrary to public policy if a defendant in such a situation cannot be sued as the plaintiff had not succeeded in repossessing the hired goods. Such a finding could lead to abuse by the hirer and may adversely affect the viability of the hire-purchase industry.”

In the circumstances of the case, I find that the Defendants have shown a triable issue in respect of the 1st HPA to the 5th HPA and no triable issue in respect of the other Hire Purchase Agreements.

Accordingly, I allow summary judgment in terms of prayers (f), (g),

(h), (i) of the notice of application with costs of RM3,000.00 subject to allocator. The claim in prayers (a) to (e) of the application will proceed to trial. Wong Chee Lin Judicial Commissioner Kuala Lumpur High Court Dated: 6th July, 2018 37 Solicitors for the Plaintiff Lee Tze Jiun & Soh Kit Inn Messrs Zairina Loh & Wong Advocates & Solicitors B-3A-10, Megan Avenue II No. 12, Jalan Yap Kwan Seng 50450 Kuala Lumpur Tel : 03-2710 8283 Fax: 03-2710 8281 Solicitors for the Defendants Satwant Singh A/L Joginder Singh Messrs Morthi, Segaran & Co Advocates & Solicitors No. 5-1, Tingkat 1, Jalan S2 C1 Sports Complex Square, Seremban 2 70300 Seremban