Victory Harvest Sdn Bhd v Hybrid Cosmic Sdn Bhd (WA-22NCC-20-01/2022)

High Court of Malaysia18 May 2022WA-22NCC-20-01/2022

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1 IN THE HIGH COURT OF MALAYA AT KUALA LUMPUR IN THE FEDERAL STATE OF TERRITORIES, KUALA LUMPUR (COMMERCIAL DIVISION) SUIT NO. WA-22NCC-20-01/2022 BETWEEN VICTORY HARVEST SDN BHD (COMPANY NO. 400352-H) … PLAINTIFF AND HYBRID COSMIC SDN BHD (COMPANY NO. 743414-V) … DEFENDANT JUDGMENT A. Introduction [1] The plaintiff filed an application for summary judgment against the defendant. The judgment sought against the defendant is for RM2,557,368.40 (“Outstanding Amount”) as at 31 December 2021, together with interests. [2] I allowed the summary judgment application for the reasons set out below. S/N /GscDYJrck2hPBE5cCdkww B. Background Facts [3] The plaintiff supplied fresh fruit bunches (“FFB”) to Dupont Leosk Enterprises Sdn Bhd (“Dupont”), at the request of the defendant (“Arrangement”). [4] On the defendant’s directions, monthly invoices were issued by the plaintiff to the defendant, for the FFB supplied. A running account was maintained by the plaintiff. [5] From November 2019 until August 2021, the defendant made continuous payments toward the invoices, to the plaintiff. However, payments were not forthcoming thereafter, and as at 31 December 2021, the Outstanding Amount was due and owing by the defendant to the plaintiff. [6] The plaintiff filed this claim for the Outstanding Amount. C. The Principles Of Summary Judgment [7] The plaintiff filed an application for summary judgment under order 14 rule 1(1) of the Rules of Court 2012. Order 14 rule 1(1) provides that: “Where in an action to which this rule applies a statement of claim has been served on a defendant and that defendant has entered an appearance in the action, the plaintiff may, on the ground that the defendant has no defence to a claim included in the writ, or to a particular part of such a claim, or has no defence S/N /GscDYJrck2hPBE5cCdkww to such a claim or part thereof except as to the amount of any damages claimed, apply to the Court for judgment against that defendant.” (emphasis added) [8] The principles of summary judgment, as derived from Bank Negara Malaysia v Mohd Ismail & Ors [1992] 1 MLJ 400 and Cempaka Finance Bhd v Ho Lai Ying [2006] 2 MLJ 685 are as follows: a. Summary judgment is a procedural device available for prompt and expeditious disposal of an action without a trial. b. To succeed in an application for summary judgment, all substantive issues must be clear, and must be able to be determined once and for all. c. Once a plaintiff has complied with the preliminary requirements under order 14 rules 1 and 2, namely that

(i) the statement of claim has been served on the defendant; (ii) the defendant has entered appearance; and (iii) the affidavit in support of the summary judgment application has verified the facts upon which the claim is based, and has stated that there is no defence to the claim, the plaintiff has established a prima facie case against the defendant. The burden then shifts to the defendant to satisfy the court as to why judgment should not be given against him. S/N /GscDYJrck2hPBE5cCdkww d. Where a defendant’s assertion, denial or dispute is equivocal or lacking in precision or is inconsistent with undisputed contemporary documents, then such assertion, denial or dispute will be rejected. In such a case, the court may grant summary judgment against the defendant. D. Considerations And Findings [9] It is undisputed that the writ and statement of claim have been served on the defendant, and that the defendant has entered appearance. The plaintiff has also verified the facts upon which the claim is based, and has stated that there is no defence to the claim. [10] I find this case to be a clear and straightforward debt recovery claim, which has been substantiated through relevant documents. [11] It is essential to highlight that the defendant had admitted to the Arrangement, stating in its affidavit that Dupont and the defendant had an arrangement with the plaintiff on the supply of FFB to Dupont. [12] The plaintiff’s claim for the Outstanding Amount is based on invoices issued to the defendant, for the FFB supplied. The plaintiff produced the following documents to substantiate its claim: a. Invoices issued by the plaintiff to the defendant; b. Proofs of payments made by the defendant to the plaintiff; S/N /GscDYJrck2hPBE5cCdkww c. An audit confirmation on the outstanding amount as at 31 October 2020, which was acknowledged by the defendant on 13 December 2021; and d. A customer balance listing as at 12 January 2022, which sets out the sales and payment transactions between the plaintiff and the defendant, and reflects the Outstanding Amount; and e. An email dated 15 October 2021, pursuant to which the defendant acknowledged the Outstanding Amount. [13] In Caltex Oil Malaysia Ltd v Classic Best Sdn Bhd & Ors [2007] 4 MLJ 772, it was held that: “[10] In coming to a decision in cases involving goods sold and delivered such as in this case, I would place due emphasis on the written documents, namely the statement of accounts, invoices, delivery orders, delivery notes and the debit notes. These documents would collectively constitute a contract reduced into writing. This principle had been laid down in the case of Pernas Trading Sdn Bhd v Persatuan Peladang Bakti Melaka [1979] 2 MLJ 124 where Salleh Abas FJ (as he then was), delivering the judgment of the Federal Court said, 'We feel that this course of action is not open to the respondents, as it is clear that under s 92 of the Evidence Act 1950, oral evidence to contradict, vary, add to or subtract from, the terms of any contract, grant or disposition of property which had been reduced in writing is not admissible. The sales invoice S/N /GscDYJrck2hPBE5cCdkww and the delivery note being the contract reduced in writing between the appellants and the respondents s 92 therefore applies.' See also YK Fung Securities Sdn Bhd v Ronald Yeoh Kheng Hian [1989] 3 MLJ 490 where the High Court had decided that 'he was subsequently furnished with the relevant monthly statement of accounts to which he had no objections, protest or queries.'” [14] Guided by Caltex Oil Malaysia Ltd, I have placed due emphasis on the invoices, proofs of payment, the audit report and the customer balance listing provided by the plaintiff to support its claim. These contemporaneous documents reflect the ongoing transactions between the plaintiff and the defendant, and confirm the Outstanding Amount. [15] It is also clear the defendant had, by way of the email dated 15 October 2021, acknowledged the Outstanding Amount, effectively admitting its indebtedness to the plaintiff. With such admission, the defendant cannot now be allowed to challenge the Outstanding Amount. [16] Based on the above, I find that the plaintiff has established a prima facie case against the defendant. The burden then shifts to the defendant to satisfy the court as to why judgment should not be given against it. [17] The main issue raised by the defendant is that the Outstanding Amount is the outcome of the Arrangement, a direct transaction between the plaintiff and Dupont. As such, the defendant argued that it cannot be made responsible for the Outstanding Amount. S/N /GscDYJrck2hPBE5cCdkww [18] On this, I refer to section 2(d) of the Contracts Act 1950, which provides that consideration may flow from a third party: “when, at the desire of the promisor, the promisee or any other person has done or abstained from doing, or does or abstains from doing, or promises to do or to abstain from doing, something, such act or abstinence or promise is called a consideration for the promise;” (emphasis added) [19] It is therefore clear that payments made by the defendant to the plaintiff are sufficient consideration for the supply of the FFB by the plaintiff to Dupont. [20] Proofs of payments made by the defendant have been produced by the plaintiff. With clear evidence of payments made by the defendant, it is disingenuous for the defendant to now deny responsibility for payment of the Outstanding Amount on the basis that the Arrangement is a direct transaction involving the plaintiff and Dupont. Further, such denial is unsupported by and inconsistent with contemporaneous documentary evidence. E. Decision [21] Based on the considerations set out above, I find this case to be a plain and obvious case for judgment to be granted summarily. S/N /GscDYJrck2hPBE5cCdkww [22] I allowed the summary judgment application, with costs. Judgment in the sum of RM2,557,368.40 together with interest, as prayed for in the summary judgment application, was granted as against the defendant. Dated 10 November 2022 - sdg - Adlin Abdul Majid Judicial Commissioner High Court of Malaya Commercial Division (NCC6) Kuala Lumpur Counsel: Plaintiff : Brian Foong of Messrs. Chooi & Company + Cheang & Ariff Defendant : Cheong Chun Shung of Messrs. Shu Yin, Teh & Taing Legislation referred to: Contracts Act 1950, section 2(d) Rules of Court 2012, order 14 rule 1(1) Cases referred to: Bank Negara Malaysia v Mohd Ismail & Ors [1992] 1 MLJ 400 Caltex Oil Malaysia Ltd v Classic Best Sdn Bhd & Ors [2007] 4 MLJ 772 Cempaka Finance Bhd v Ho Lai Ying [2006] 2 MLJ 685 S/N /GscDYJrck2hPBE5cCdkww

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Case metadata

Court: High Court of Malaysia
Decision date: 18 May 2022
Case number: WA-22NCC-20-01/2022
Coram: YA Puan Adlin Binti Abdul Majid
Practice area: “The plaintiff delivered fresh fruit bunches (“FFB”) to Dupont Leosk Enterprises Sdn Bhd (“Dupont”), at the request of the defendant. Payments were made by the defendant. The plaintiff claimed outstanding payments from the defendant. The plaintiff filed an application for summary judgment. The court allowed the application, as the court found that the outstanding amount is supported by contemporaneous documentary evidence. The court also found that although FFB were delivered to Dupont, consideration can flow from the defendant
Version: Alasan Penghakiman 1
Published: 16 Nov 2022
Source ID: 0d1c6bfc-6b82-4d72-a13c-1139702764c3

Catchwords

“The plaintiff delivered fresh fruit bunches (“FFB”) to Dupont Leosk Enterprises Sdn Bhd (“Dupont”), at the request of the defendant. Payments were made by the defendant. The plaintiff claimed outstanding payments from the defendant. The plaintiff filed an application for summary judgment. The court allowed the application, as the court found that the outstanding amount is supported by contemporaneous documentary evidence. The court also found that although FFB were delivered to Dupont, consideration can flow from the defendant

Parties

VICTORY HARVEST SDN BHD - plaintiff - ejudgment_parties
HYBRID COSMIC SDN BHD - defendant - ejudgment_parties

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Victory Harvest Sdn Bhd v Hybrid Cosmic Sdn Bhd (WA-22NCC-20-01/2022)

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