T & K Automation Sdn Bhd v Smart Glove Corporation Sdn Bhd (WA-22NCC-362-05/2023)

The Plaintiff’s cause of action is premised on the goods sold and delivered to the Defendant whereby the Defendant has failed to pay outstanding amount of RM1,096,3891.60 for the goods which have been delivered by the Plaintiff to the Defendant. The Plaintiff applied for summary judgment against the Defendant pursuant to O.14 of the Rules of Court 2012 as documented in Enclosure 9. At the conclusion of the hearing, the application was allowed. The Defendant appealed against the decision.

Whether the following issues amounted to triable issues. They are: i. Whether the parties are bound to the Plaintiff’s quotation and the Defendant’s purchase orders; ii. Whether the Plaintiff had breached the terms of the contractual documents namely: a) whether the Plaintiff delayed in delivering and installing the goods; b) whether the goods supplied and provided by the Plaintiff were of low quality and resulted in poor performance which did not meet the Defendant’s intended purpose and usage; and iii. Whether the Plaintiff is entitled to claim late payment interest against the Defendant.

The issues raised by the Defendant will be collectively considered.

It is not disputed that this is a case of goods sold and delivered. The very fact that the Defendant had accepted the delivery of the goods without objection at the material time is clear evidence of the Defendant’s liability to make good the demand for payment.

The Delivery Order clearly states that any complaints are to be made in writing. No complaints were ever made about the goods after the deliveries were made.

The Defendant is estopped from claiming that the goods had breached the terms of the agreement between parties. This is primarily because no objection was raised on grounds of the goods being delivered late. No documentary evidence were produced to support the Defendant’s argument.

On the contrary, even goods delivered after the purported cut-off date of April 2022 continued to be accepted and paid by the Defendant. It was demonstrated that the Defendant had made payments to the Plaintiff on 24.11.2021 and 22.3.2022. Naturally, the Defendant will stop making payments to the Plaintiff for the said goods if the Defendant did not receive the said goods on time i.e. before April 2021.

The issue raised by the Defendant is therefore an afterthought. It was never raised prior to the issuance of the Statement of Claim. This therefore debunks the Defendant’s contention that the late delivery of goods was a triable issue.

The Plaintiff’s claim is also supported by invoices issued. The invoices provide the basis for interest chargeable. Therefore, the Defendant was aware that the Plaintiff is entitled to charge interest.

Furthermore, the Debtor Statement which were issued to the Defendant as exhibited in the Affidavit in Support of the Plaintiff’s application reinforces the Plaintiff’s entitlement to be paid for the goods delivered and the interest charged.

On the facts, it is clear that there was no dispute raised by the Defendant when the invoices were issued to the Defendant.

The parties are bound by the Quotation and Purchase Orders. Any challenge on this issue is a non-starter. Both parties had conducted themselves as men of commerce in the delivery and acceptance of the goods. This was evident as the up until July 2022, goods were still delivered by the Plaintiff.

This Court is cognizant of the principles laid down by high authorities when considering summary judgment applications. The Defendant ought not to be shut out from defending a claim unless it is very clear he has no case in the action. A complete defence need not be shown (Alloy Automotive Sdn Bhd v. Perusahaan Ironfield Sdn Bhd [1986] 1MLJ 382 SC). The defence set up need only show that there is a triable issue (Bank Negara Malaysia v. Mohd Ismail (supra)). The provision should only be applied to cases where there is no reasonable doubt that the Bank is entitled to judgment (Malayan Insurance (M) Sdn Bhd v. Asia Hotel Sdn Bhd [1987] 2 MLJ 183 SC). An application under O. 14 of the RSC order should only be made only if the court thinks it is a plain case 5 and ought not go to trial (Esso Standard Malaysia v. Southern Cross Airways (M) Bhd [1972] 1 LNS 31).

In the final analysis, the question whether the issues raised were triable must be considered in light of the guidance by the Federal Court in Voo Min En & Ors Leong Chung Fatt [1982] 2 MLJ 241. The pertinent principle being one where it is not enough for the defendant “to raise an issue or any issue”. The Defendant must instead raise such issue as would require a trial in order to determine it.

The issues raised by the Defendant in the present suit clearly have failed to meet the test of being a triable issue.

It is in this context that cumulatively, this Court finds the Plaintiff being entitled to a summary judgment on the trite principles laid down in National Company for Foreign Trade v. Kayu Raya Sdn Bhd [1984] 2 MLJ 300. The Defendant failed to discharge the burden of proving that there were issues that merit a trial.

It would be a waste of judicial time if the suit is allowed to proceed to trial. This is fit and proper case to allow for judgment to be entered summarily.

The application found in Enclosure 9 is allowed. (AHMAD FAIRUZ BIN ZAINOL ABIDIN) Judge High Court of Malaya Kuala Lumpur Dated: 4th April 2024 Counsel Chuah Chuen for the Plaintiff Messrs. Kenny Lee & Associates, Selangor Jocelyn Ong for the Defendant Messrs. CP Khon & Tan, Selangor