Superlift Machinery Sdn. Bhd. v 1. ) M.S. Time Sdn. Bhd. (JA-22NCvC-24-03/2024)

M.S. TIME SDN. BHD. (No. Syarikat: 199501001748 (330942-U))

DATUK SERI MOHD EFFANDIE BIN AHMAD (No. K/P: 581125-01-6371) …DEFENDAN-DEFENDAN ALASAN PENGHAKIMAN [1] This is an appeal by the Defendants against the decision of this Court in allowing enclosure 10 under O14 for summary judgment entered for the Plaintiff. An order was granted against the Defendants to pay the Plaintiff a sum of RM862,000.00 for machinery rental with interest of 5% calculated on the original sum RM1,272,541.05 from 25.10.2023 as per the breakdown shown in the affidavit in support enclosure 12. 05/06/2025 14:42:33 JA-22NCvC-24-03/2024 Kand. 45 S/N oamXjTI6KkC3zYwAh5Eqbg [2] The application for summary judgment albeit for a sum of RM 1,272,541.06 (having deducted RM190,000.00 paid by the Defendants to the original claim of RM1,545,541.05) arose from a settlement agreement@ letter of guarantee formulated by both parties to bring to end a suit filed by the Plaintiff in JA-22NCVC-67-05/2023, only against the 1st Defendant, then for. The 2nd Defendant being the director of the 1st, did not dispute the existence of this letter of guarantee and the said outstanding sum. [3] The 2nd Defendant acting as guarantor in the said settlement agreement (see: enclosure 12 Affidavit in Support “AIS” page 79 pdf.) where the agreement sees both the Defendants had agreed for the payment of RM1,557,541.05 to the Plaintiff by way of monthly instalment paid via online transfer. With this consensus, suit 67 withdrawn. The monthly instalment was also tabled as part of the settlement agreement (see: enclosure 12 AIS page 4 pdf). [4] The clauses to the agreement selected by this Court to be the crucial ones state as follows: “2. Failure to make payment of any instalment due herein for more than a period of seven (7) days of the due date, a written notice by Superlift Machinery shall be served to MST where upon expiry of fourteen (14) days of such written notice, all the balance outstanding settlement sum become due and payable”. …

In the event of default payment, Superlift Machinery is entitled to sue for the balance outstanding settlement sum and further damages and interest of 5% per annum calculated from due date to the date of payment. S/N oamXjTI6KkC3zYwAh5Eqbg

A written statement from the Superlift Machinery as to any amount due to Superlift Machinery under this Settlement Agreement giving details on the basis of calculation or determination of that amount, shall, in the absence of manifest error, be conclusive evidence that such amount is in fact due and payable. … Guarantee 7. In consideration of Superlift Machinery and MS Time agreeing to enter into this Settlement Agreement and in consideration Superlift Machinery agreeing to withdraw the Suit, DSMEA (2nd Defendant) hereby unconditionally and irrevocably guarantee and undertake to pay on demand all monies and liabilities whether certain or contingent now or hereafter due or owing or remain unpaid by MS Time to Superlift Machinery under this Settlement Agreement as may be demanded by Superlift Machinery. …

To give effect to this Guarantee, Superlift Machinery shall be at liberty to act as though the guarantor were principal debtor to Superlift Machinery for all payments guaranteed by the guarantor as aforesaid to Superlift Machinery.” [5] The defendants contended that they had in fact paid more, the payment sum being RM639,403.33. The Plaintiff upon perusing and updating its payment records, responded via its affidavit in response enclosure 15 admitting the said payment of RM639,403.33 by the Defendants. The omission to recognize this payment arose as the Defendants had failed to notify the incoming payments from the Defendants. [6] This is understood as the table for the repayment by way of 26 instalments of a particular sum carry a due date of the 25th for each month beginning with the 1st instalment to be for RM95,000.00 with due date S/N oamXjTI6KkC3zYwAh5Eqbg

25.9.2023. The breakdown of the amount pleaded by both parties outstanding or paid are as follows: No. Instalment Amount (RM) Due date

95,000 25.09.2023 2. 95,000 25.10.2023 Total 190,000

95,000 25.11.2023 4. 95,000 25.12.2023 5. 95,000 25.01.2024 6. 95,000 25.02.2024 7. 69,403.33 25.03.2024 Total: 190,000 + 380,000 (95,000x4 instalments) + 69,403.33 (5th instalment) 639,403.33

56,137.72 25.04.2024 9th to 25th (17 instalments) 50,000 x 17 instalments= 850,000 25.05.2024 to 25.09.2025 26. 12,000 25.10.2025 Total: 862,000 Sum awarded by this Court [7] The dispute arises on the reading of clause 2, as the Defendant contended that an extended period of 7 days permissible if failure to settle the instalment sum occur on the due date with another 14 days upon S/N oamXjTI6KkC3zYwAh5Eqbg service of a written notice by Superlift Machinery to MST. Only upon the expiry of this grace period would the whole balance sum become due and payable. [8] This Court is of the view that what the table in clause 1 meant is that the sum as contained in the table becomes due on the 25th day of each month. If no payment is made before or by the 25th, the sum becomes an outstanding sum and clause 2 stipulates the risk MST will encounter if failure to remedy the payment of the said instalment. If non-payment continues for the next 7 days from the due date and not remedied, the breach extended another 14 days of the service of the written notice, the whole outstanding sum becomes due. [9] In short, the outstanding sum must be paid before the end of the 7th day from the due date 25th day. However, this does not mean Superlift Machinery will not accept late payment. But it is only if the breach continues for another 14 days of the service of the notice, then the whole balance sum becomes due. Superlift Machinery would then be entitled to claim the whole balance sum outstanding irrespective of the settlement agreement. [10] The Defendant contended (see: affidavit in reply of the Defendant enclosure 16) that the Plaintiff via a WA message with the Director of the Plaintiff said there was a further agreement by the Plaintiff for the outstanding sum to be paid in smaller instalments and the existing settlement agreement to be waived. A screenshot of the message exhibited. Regrettably, this Court could not find anything in the contents of the said WA to suggest this. S/N oamXjTI6KkC3zYwAh5Eqbg [11] Clause 2 is not meant to give an extension of time to the Defendants to settle the particular instalment as the table itself has stressed the due date for payment. Rather, it is a clause to trigger the right of the Plaintiff to seek for the balance of the whole sum due. This is supported by clause 5 which provides in the event of default payment, the Plaintiff is entitled to sue for the balance outstanding with interest of 5% per annum calculated from due date to the date of payment. The test [12] In Cempaka Finance Bhd v. Ho Lai Ying & Anor [2006] 3 CLJ 544 (Mahkamah Persekutuan) laid out the principle to be determined before an application for summary judgment can be successful:- “In an application under O. 14 RHC, the burden is on the plaintiff to establish the following conditions: (i) that the defendant must have entered an appearance; (ii) that the statement of claim must have been served on the defendant; and (iii) that the affidavit in support must comply with r. 2 of O. 14 RHC in that it must verify the facts on which the claim is based and must state the deponent's belief that there is no defence to the claim. Once those conditions are fulfilled, the burden then shifts to the defendant to raise triable issues”. [13] In Mohamed Zainuddin bin Puteh v Yap Chee Seng [1978] 1 MLJ 40 referred to by the Court in Keet Gerald Francis Nole John, Hashim Yeop A Sani J said as follows: “This is what that very eminent judge said in that case (at p 42): “Firstly, to discover whether the plaintiff's case is frivolous or vexatious. If it is not, then to decide in whose favour the balance of convenience S/N oamXjTI6KkC3zYwAh5Eqbg lies. If these factors are evenly balanced it may not be improper for the court to take into account any tipping in the balance as revealed by affidavits. … Secondly, if the plaintiffs were to succeed at the trial, whether they would be adequately compensated for the interim continuance of the defendant's activities. Conversely is the question that if the defendants were to succeed at the trial, whether they would be adequately compensated for the interim restriction on their activities which the grant of an interlocutory injunction would have imposed. The judge then considers the balance of convenience, and if the relevant factors were evenly balanced the court should grant an interlocutory injunction which would maintain the status quo. It is said that at that stage the court is not justified in embarking upon anything resembling a trial of the action upon conflicting affidavits.” (emphasis added). [14] Reverting back to the relevant tests set out, the first and foremost substantive issue that must be determined by this Court is whether the totality of the facts presented disclosed a bona fide serious issue to be tried. Put it in another word, whether the Plaintiff’s case is frivolous and vexatious. On this premise, similar to Mohamed Zainuddin bin Puteh’s case (supra) firstly, it is best to acknowledge ‘the conflicting affidavits put in by both parties that would require a proper trial to enable a definite finding on the issue’. Secondly, in ascertaining if the Plaintiff’s case is frivolous and vexatious, and if it is not, then to decide in whose favour the balance of convenience lies. If these factors are evenly balanced it may not be improper for the court to take into account any tipping in the balance as revealed by affidavits (See: American Cyanamid Co v Ethicon [1975] 2 WLR 316). S/N oamXjTI6KkC3zYwAh5Eqbg [15] With this in mind, this Court finds that there are no triable issues to be tried, as the amount as awarded by this Court remains outstanding. Thus the relief sought for judgment sum of RM862,000.00 be entered against the Defendants is allowed having deducted the sum paid by the Defendants. The Defendants to jointly and severally pay the Plaintiff the said sum. As to interest, as the amount already became due on 25th of each month, interest of 5% from RM1,272,541.06 calculated from 25.10.2023 as payments were made by Defendants in breach of the agreed table. The detail date of payment made show partial sum and made on other dates than the 25th as initially agreed. (see: Plaintiff’s submission in enclosure 19 page 12 pdf). Signed (NURULHUDA NUR’AINI BINTI MOHAMAD NOR) Judge High Court of Malaya Johor Bahru

31.5.2025 S/N oamXjTI6KkC3zYwAh5Eqbg COUNSEL For the Plaintiffs: K S Lim Messrs. S. K. Song Advocates & Solicitors No. 75A, (1st Floor), Jln Mutiara 1/9 Taman Mutiara Mas 81300 Skudai For the Defendants: Sandra Lee Yen Ping Messrs. Azwar & Associates Advocates & Solicitors D-3A-8, Unit 8, Level 3A Block D, Megan Avenue 1 189 Jln Tun Razak 50400 Kuala Lumpur S/N oamXjTI6KkC3zYwAh5Eqbg