Target Sales & Marketing Sdn Bhd v 1. ) Tinta Anggun Engineering Sdn Bhd (WA-22NCC-99-03/2023)

Lampiran

Lampiran A of the Defence. The Plaintiff's Reply did not deny these payments but argued they were for earlier undisclosed invoices, creating a contradiction. [15] The Defendants referred to the SOC and highlighted that it commenced with the first invoice dated 30.4.2018. Payments totaling RM3,571,052.63 were made to the Plaintiff after this date, as detailed in Lampiran A of the Defence. [16] The Defendants argued that based on the pleadings and the Plaintiff's acknowledgment of receiving payments of RM 4,317,006.61, there was no outstanding amount due. [17] The Defendants further argued that payments totaling RM3,571,052.63 made to the Plaintiff after 30.4.2018 should have reduced the principal amount outstanding and therefore the Plaintiff’s claim for interest on non-payment for the sum of RM593,183.91 is not correct. The Plaintiff’s submissions [18] The Plaintiff objected to the timing and admissibility of the Defendants' affidavit in reply. It referred to O 32 r 13(2)(c) of the ROC 2012, which mandates that an affidavit in reply should be filed and served within fourteen days from the date the affidavit. The Plaintiff also argued that proceedings based on affidavit evidence should have evidence deemed closed when parties begin their submissions. Since the Defendants did not seek an abridgment of time and served their affidavit after the Plaintiff had submitted their Written Submissions, the Plaintiff urged the court to preclude the Defendants' affidavit in reply as evidence. [19] In respect of the Defendants’ contention that they have made payment of RM4,371,007.61 to the Plaintiff, the Plaintiff submitted that as Plaintiff’s invoices were never disputed and the Defendants' claims lack supporting documents, the alleged payments mentioned in the Defence are irrelevant. The Plaintiff emphasised that the 1st Defendant had ordered goods based on its own purchase orders and had received the goods as ordered, which corresponded to the invoices issued by the Plaintiff. Notably, the Defendants never raised any complaint or dispute concerning the goods or invoices. The Plaintiff questioned the relevance of Lampiran A of the Defence, which detailed payments allegedly made between 2017 and September 2019, amounting to RM4,371,007.61, asserting that these payments were unrelated to the current claim. The Plaintiff had previously issued letters of demand seeking payment for the outstanding invoice sum and late payment interest, which were not disputed by the Defendants. Analysis and findings of the court Preliminary objection [20] First of all, I ruled on the Plaintiff’s preliminary objection that the Defendants’ affidavit in reply was filed late. I allowed this objection. From my calculation the affidavit was filed almost 6 weeks after the due date which commences 14 days after the Plaintiff’s affidavit in support was served. The affidavit was also served after the Plaintiff served its Written Submissions to the Defendants’ solicitors on 20.6.2023. There is no explanation for this delay given by the Defendants in their affidavit. [21] Order 32 r 13(2)(c) of the ROC 2012 requires a party intending to reply to an affidavit to do so within fourteen days from the date the affidavit it intends to reply to was served on it. In Sagujuta (Sabah) Sdn Bhd v Trane Malaysia Sales & Services Sdn Bhd [2013] MLJU 1552 it was held that filing an affidavit in reply within the prescribed time is mandatory, unless there is an application for an abridgement of time. In Lum Choon Realty v Pewira Habib Bank Malaysia Bhd [2003] 4 MLJ 409 it was held that in affidavit-based proceedings, when the parties begin their submissions, the evidence is deemed closed, and parties are only allowed to submit based on the evidence in the affidavits. [22] As the Defendants did not apply for leave or abridgment of time to file their affidavit and it was served after the Plaintiff had already served its written submission to the Defendants’ solicitors, the Defendants' affidavit is precluded as evidence. Payment of RM4,371,007.61 by the Defendants [23] The contentions of the Defendants that it had already made a payment of RM4,371,007.61 to the Plaintiff towards the invoices are only found in the pleadings. However, these do not assist the Defendants as this would be at best mere contentions in pleadings which are not evidence. Whatever that is contended by the Defendants regarding the payments they made which were supposed to have extinguished the outstanding amount must be supported by documentary evidence. The Defendants’ assertion of having paid RM4,371,007.61 and therefore, having no outstanding dues to the Plaintiff, is unfounded and the court deems this to be an afterthought on their part. [24] The afterthought is further demonstrated by the Defendants’ failure to respond to the Plaintiff’s letters of demand sent before this action was commenced. The letters of demand were sent to the Defendants on two occasions, dated 13.5.2022 and 1.8.2022, seeking payment for the outstanding invoice sum along with late payment interest. Notably, the Defendants did not dispute the receipt of these letters, nor did they contest the amount demanded at that time. The only instance where the Defendants disputed the amount was in their Defence. Interest of RM593,183.91 [25] The court's rejection of the Defendants's contention on the payment of RM4,371,007.61 also puts paid to the Defendants' argument that the payments totaling RM3,571,052.63 made to the Plaintiff after 30.4.2018 should have reduced the principal amount outstanding affecting the amount of interest on non-payment. Bare averment of the Defendants [26] Even if the Defendants’ affidavit were to be accepted by the court, this contains bare averments which are not supported by documentary evidence. The list of payments exhibited by the Defendants is a self created document, not supported by any other contemporaneous evidence. No other reason for trial [27] The court also finds that there is no other reason for trial as the nature of the case is straightforward and falls within the realm of a simple and ordinary commercial matter. The dispute revolves around goods that were sold and delivered, and the parties have already filed their respective SOC and Defence. [28] Upon careful examination of the evidence and pleadings submitted thus far, there are no complexities or intricate legal issues that warrant further investigation or examination through a full trial. The essential facts have been disclosed, and the relevant documents have been presented and examined. [29] The Defendants have failed to provide any substantial evidence to counter the Plaintiff's claims when they had ample opportunity to do so, nor have the Defendants raised any legitimate disputes regarding the delivery of the goods or the invoiced amounts. The Defendants’ contention that a significant payment has been made lacks supporting documentation and is clearly an afterthought, as they did not protest the letters of demand sent. [30] Given the straightforward and uncomplicated nature of the case, conducting a full trial would be unnecessary, time-consuming, and burdensome for all parties involved. It would only serve to prolong the resolution of the matter without adding any significant value or shedding light on new and pertinent information. [31] The granting of a summary judgment is warranted to expedite the resolution of the matter efficiently and justly. Conclusion [32] Considering the totality of the facts and circumstances of the case as disclosed in the affidavit evidence, it was quite clear to me that the Plaintiff had clearly met the preliminary requirements in an O 14 application in accordance with the principles established by National Company For Foreign Trade v Kayu Raya Sdn Bhd [supra] and further, applying the leading Supreme Court case of Bank Negara Malaysia v Mohd Ismail Ali Johor & Ors [1992] 1 CLJ 627. Accordingly, I held that the contentions of the Defendants do not amount to triable issues or constitute any reasonable defence. 25 October 2023 ATAN MUSTAFFA YUSSOF AHMAD Judge Kuala Lumpur High Court (Commercial Division) Counsel: For the Plaintiff: Angie Loo (Messrs David Lai & Tan) For the Defendants: Devan Narayanan Raman (Messrs Devan & Associates)