IN THE HIGH COURT OF MALAYA AT DI SHAH ALAM
IN NEGERI SELANGOR DARUL EHSAN
CIVIL APPEAL NO: A11-152-2009 (RS 92/09)
BETWEEN
YBR MANAGEMENT SERVICE
SDN BHD
(NO. SYARIKAT : 361975-W)
…
DEFENDANT/APPELLANT
…
PLAINTIFF/RESPONDENT
AND
KESELAMATAN GARUDA
BERSATU (M) SDN BHD
(NO. SYARIKAT : 420964-U)
GROUND OF JUDGMENT
INTRODUCTION
This appeal is brought by the defendant/appellant, YBR Management
Service Sdn Bhd, against the decision of the learned Shah Alam
magistrate, allowing the notice of application dated 13th October,2008 filed
by the plaintiff/respondent for summary judgment to be entered against the
defendant, pursuant to Order 26A, Subordinate Courts Rules, 1980(“SCR
1980”). The facts leading up to this appeal are as follows.
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FACTS AND BACKGROUND
The plaintiff’s claim against the defendant is with regard to the
security services provided by the plaintiff for a condominium known as
Idaman Sutera Condominium situated in Gombak, Selangor.
The plaintiff pleaded that it had provided security services for the
defendant at the said condominium and the defendant owed it arrears of
payment totaling RM24, 612.12. The plaintiff's affidavit in support affirmed
by its general manager, Indhraraj a/l Joseph, averred that a letter dated 13
September,2006 exhibited as “KGB-2” was issued by the defendant to
confirm that the amount was due and further confirmed that the defendant
will pay the arrears by installments. The plaintiff exhibited invoices and the
security attendance list which was signed by Idaman Sutera Management
Services Sdn Bhd. These documents were exhibited as “KGB-3”)
The defendant objected to the plaintiff’s application for summary
judgment through its affidavit in reply affirmed by the defendant’s manager,
Zawawi bin Abu Hassan dated 5th November, 2008 (exhibit “ZW 2”) and
averred that the defendant had written a letter to the plaintiff dated 13th
June, 2008 requesting the plaintiff to furnish an investigation report with
regard to a missing jockey pump. The defendant further wrote a letter dated
9th November, 2008, stating that the defendant will hold the plaintiff
responsible for the loss of the jockey pump and further stated that the
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defendant will hold back payment of RM8,809.92 until the plaintiff gave a
reasonable explanation to the defendant as to how the jockey pump went
missing. This letter was exhibited as “ZW 3”.
DEFENDANT’S CONTENTION
In opposing the application for summary judgment to be entered
against the defendant, counsel for the defendant, Mr Mohd Azlan
contended that since the plaintiff did not deny that it was responsible for the
loss of the jockey pump, the plaintiff owed Idaman Sutera Sdn Bhd RM
8,809.92. In this regard, Mr Mohd Azlan submitted the case of Ng Hee
Thoong & Anor vs Public Bank Berhad [1995] 1 MLJ 281. In this case
the court held that:
“In evaluating affidavit evidence, where one party makes a positive
assertion upon a material issue, the failure of his opponent to contradict it
is usually treated as an admission by him of the facts so asserted.”
Mr Mohd Azlan further submitted that due to the plaintiff’s admission
(failure to contradict the defendant’s affidavit in reply), there are issues to
be tried and referred to the case of Noh Hyoung Seok v Perwira Affin
Bank Berhad [2005] 655 to support his contention. In that case, the Court
of Appeal held:
“It is not the function of a judge in an Order 14 application to delve into the
merits of the case and to decide whether the defendant is likely to
succeed or fail. The trial judge is only required to scrutinized the defence
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of the defendant, and to rest them, inter alia, against the language of
Order 14 r 4 of the RHC to determine whether or not they are plausible
defence.”
PLAINTIFF’S CONTENTION
In reply to the defendant’s submission, the plaintiff’s counsel, Mr
Gavin Durai contended that the defendant did not object or challenge a
settlement that has been reached between both parties which was
confirmed in a letter dated 13th September, 2006 referred to as exhibit
KGB-2. Thus, the failure of the defendant to contradict the settlement
should be treated as an admission by the defendant of the fact so asserted.
Mr Gavin Durai also referred to the same case of Ng Hee Thoong & Anor
vs Public Bank Berhad (supra) which states:
“Now, it is a well settled principle governing the evaluation of affidavit
evidence that where one party makes a positive assertion upon a material
issue, the failure of his opponent to contradict it is usually treated as an
admission by him of the facts so asserted: Alloy Automotive Sdn Bhd v
Perusahaan Ironfield Sdn Bhd [1986] 1 MLJ 382; Overseas
Investment Pte Ltd v Anthony William O’Brien & Anor [1998] 3 MLJ
332.”
Mr Gavin Durai further submitted that the defendant’s assertion
and denial are inconsistent with the exhibited documents. Therefore
this court has a duty to reject them. He then referred to the case of
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Bank Negara Malaysia v Mohd Ismail & Ors [1992] 1 MLJ 400. In
this case the Court held:
“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 the principle is adhered to, a judge is in no position to
exercise his discretion judicially in an O 14 application.”
Findings of the court
The law applicable under this application for summary judgment is
found in Order 26A, Subordinate Courts Rules 1980 (SCR 1980). Order
26A Rule 1 states:
“Where an action to which this rule applies a statement of claim has been
served on a defendant the plaintiff may, on the ground that defendant has
no defence to a claim included in the summons, or to a particular part of
such claim, or has no defence to such claim or part except as to the
amount of any damages claimed, apply to the court for judgment against
the defendant.”
Basically there are two principles to be applied in dealing with an
application for summary judgment. The first principle is that the plaintiff has
to convince the court that the defendant plainly and obviously has no
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defence to the claim or any part thereof. Secondly, if the defendant can
show that there is a serious conflict of material facts as disclosed in the
opposing affidavits, or there is otherwise a triable issue worthy of judicial
investigation in a full trial of the action, then summary judgment should be
refused. In other words, the burden is on the defendant to raise triable
issues. The defendant may do so by setting up a bona fide defence or
raising a bona fide triable issue, though a complete defence need not be
shown. These principles were laid down in the case of Abdul Rahim
Abdul Hamid & Ors v. Perdana Merchant Bankers & Ors [2000] 2 CLJ
457 CA. where the Court of Appeal held:
“In a nutshell, in an application under O. 14 made by the plaintiff for
summary judgment without trial, the general principles established are that
the plaintiff has to satisfy the court that the defendant plainly and obviously
has no defence to the plaintiff's claim or part of the plaintiff's claim. If the
plaintiff is able to satisfy the court, then summary judgment should be
entered in the plaintiff's favour. On the other hand, if the defendant can
show that there is a serious conflict of material facts as disclosed in the
opposing affidavits, or there is otherwise a triable issue worthy of judicial
investigation in the trial of the action, or there is an important and difficult
point of law requiring further and mature consideration at the trial,
summary judgment should be refused.”
The philosophy of the O14 provision is explained in Malayan
Insurance (M) Sdn Bhd v Asia Hotel Sdn Bhd [1987] 2 MLJ 183
(SC) at p 185 where Hashim Yeop Sani, SCJ, (as he then was), said:
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“The underlying philosophy in the O 14 provision is to prevent a
plaintiff clearly entitled to the money from being delayed his
judgment where there is no fairly arguable defence to the claim.
The provision should only be applied to cases where there is no
reasonable doubt that the plaintiff is entitled to judgment. Order 14
is not intended to shut out a defendant. The jurisdiction should only
be exercised in very clear cases.”
And in Perwira Affin Merchant Bank Bhd v. Dato' Soh Chee Wen [2003]
3 MLJ 555 Abdul Wahab J, (as he then was), further elaborated:
“Thus, after first identifying the issues of fact or law, the court must go one
step further and determine whether they are triable. A complete defence
need not be shown. The defence set up need only show that there is a
triable issue. It is trite that the term 'triable' is used in the sense of
requiring to be tried so as to determine a fact in issue, and not in the
colloquial usage of merely 'can be tried'. If the latter sense is adopted,
every argument however absurd or unlikely to succeed could be used to
insist upon a trial. A triable issue is an assertion that not only has been
raised and is denied or disputed, but is one upon which there is some
evidence that is not equivocal or lacking in precision, or is not inconsistent
with undisputed contemporary documents or other statements by the
same deponent, or is not inherently improbable in itself, to support it.
Where the facts are clear and undisputed, there is no purpose in a trial. In
such a case the court should exercise its power of summary judgment
under O 14 because then the issue remaining is then only a question of
inferences to be drawn from those facts and/or question of law, which
requires submission but not the calling of witnesses. Also, if the point of
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law is identified and the court is satisfied that it is unarguable, the court is
not prevented from granting a summary judgment merely because the
question of law at first appears to be of some complexity and therefore
took a little longer to understand': Cow v Casey [1949] 1 All ER 197;
European Asian Bank AG v Punjab & Sind Bank [1983] 2 All ER 508.”
Bearing in mind the above principles, I shall now deal with the main
issue in this appeal. In doing so, I had considered the written submissions
and the bundle of authorities of both the learned counsels for the defendant
and plaintiff. To my mind there is only one issue raised by the defendant
which it claimed to be triable. The issue is the allegation that a jockey pump
was missing at the condominium and since the plaintiff was in charge in
providing security services at the condominium, the defendant held the
plaintiff responsible for the loss and will hold back the payment of RM
8,809.92 (part of the sum claimed by the plaintiff). To substantiate its claim,
the defendant relied on the letters marked as Exhibit “ZW 1” and “ZW 2”.
After perusing the said exhibits, I find that it is not supportive of the
defendant’s claim. Firstly, as correctly submitted by the learned counsel for
the plaintiff, Mr Gavin Durai, there is a letter dated 13th September, 2006
exhibited as “KGB-2” issued by the defendant admitting the amount due
and also stating that the defendant will pay the arrears by installments.
Secondly, the defendant had failed to rebut the plaintiff’s averment that the
defendant had agreed and had confirmed that the amount was due.
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Therefore, it is obvious that these documents do not prove or corroborate
the defendant’s unclear and general allegations. Further, the defendant’s
allegation is obviously a bare allegation without descending into particulars.
The defendant has not identified the specific occasion on which the jockey
pump were found not to be at the condominium and had failed to state the
relevant clause under the contract entered between both parties as regard
to the liability of the plaintiff.
It is trite law that a bare allegation does not constitute a triable issue.
This principle was established in the case of Perbadanan Pembangunan
Ekonomi Sarawak v. Sarawak Motor Industries Bhd [1989] 1 LNS 59,
where the court held:
“In my view this is a clear and straightforward case of a loan agreement
whereby the full loan was advanced to the defendants by the plaintiffs and
the defendants have not kept to paying the loans as agreed in the said
agreement and the plaintiffs have taken the necessary steps in
accordance with the provisions of the said agreement before filing the
present suit. I am satisfied that there are no triable issues in this case
though the defendants seemed to try to impress upon the court that the
issues are complex and involved. Raja Azlan Shah J (as he then was) in
Esso Standard Malayan Berhad v Southern Cross Airways (M) Bhd
[1972] 1 MLJ 168 at p 171 said:
It is I think right that an order under RSC O 14 should be made only
if the court thinks it is a plain case and ought not to go for trial. If
one simply has a short matter of construction with a few
documents, the court on summary application should decide what
in its judgment is the true construction. There should be no reason
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to go formally to trial where no further facts could emerge which
would throw any light upon the letters that have to be construed.”
The defendant must satisfy the court that there is an issue to be tried and
not by a mere general denial. In the case of Huo Heng Oil Co. (EM.) Sdn.
Bhd. v. Tang Tiew Yong [1984] 1 LNS 45, Chong Siew Fai J, (later CJ
(Sabah & Sarawak), said:
“In opposing the application for summary judgment, the respondent must
satisfy the court that with respect to the applicant's claim there is an issue
or question in dispute which ought to be tried or that there ought for some
other reason to be a trial of that claim (0.26A r.3(1)). But this cannot be
achieved by raising facts which do not constitute a defence to the claim:
Hookham v Mayle (1906) 22 TLR 241 nor by a mere general denial of
indebtedness: Wallingford v Mutual Society (1880) 5 App Cas 685 HL,
where Lord Blackburn said (page 704):
"I think that when the affidavits are brought forward to raise that
defence they must, if I may use the expression, condescend upon
particulars. It is not enough to swear, "I say I owe the man nothing."
Doubtless, if it was true, that you owed the man nothing, as you
swear, that would be a good defence. But that is not enough. You
must satisfy the Judge that there is reasonable ground for saying
so."
Likewise, the expression "the defendant puts the plaintiff to proof" is
insufficient traverse. (See Harris v Gamble (1878) 7 ChD 877).”
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And in the case of Chen Heng Ping & Ors v. Intradagang Merchant
Bankers (M) Bhd [1995] 3 CLJ 690, Mahadev Shankar, JCA, (as he then
was), states:
“When an application is made for summary judgment under O. 14
supported by an affidavit which goes to show that there is no defence, the
defendants must show cause why leave to defend must be given. This
means that the defendants must provide answers on oath which constitute
evidence that they have a defence which is fit to be tried. Denials in a
defence do not constitute evidence. They are challenges to the other
side to show proof. In the present case the guarantors do not appear to
have appreciated this. Their affidavits merely relied on the defence they
pleaded, which consists of bare denials and points of law which they could
not sustain.”
The following three authorities cited below pertaining to summary
judgments may be referred to as guidance in the instant appeal.
In the case of Isume Co. Pte. Ltd. v. Ho Shing Construction Co.
Pte. Ltd. [1987] 1 LNS 14; [1987] 2 MLJ 571, the contract was made
between the plaintiff and the defendant for the hiring of certain machines.
The defendant's contention that another party Shinju Pte Ltd was liable was
rejected by Thean J as a sham defence.
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In Pernas Trading Sdn. Bhd. v. Persatuan Peladang Bakti Melaka
[1979] 1 LNS 65; [1975] 1 MLJ 124 FC, the plaintiffs claim was for balance
of the price of goods sold and delivered to the defendant. Plaintiffs invoice
dated 26 July 1976 stated that the goods were sold to the defendant.
Receipt of the goods had been acknowledged by the defendant in the
delivery note. The Federal court through the judgment of Salleh Abas, FJ,
(later LP), allowed the entry of summary judgment for the plaintiff.
In Niaga Tani Sdn Bhd v. Samarez Holdings Berhad [2004] 1 LNS
165; [2005] 1 MLJ 239, the plaintiff claimed for the price of goods sold and
delivered. The defendant had acknowledged owing the plaintiff a certain
sum for which the defendant undertook to pay RM20,000.00 monthly until
their cash flow position improved. Balia Yusof J affirmed the summary
judgment entered for the plaintiff.
CONCLUSION
Once the plaintiff has made out a prima facie case, the onus is on the
defendant to show why judgment should not be entered against it by
affidavit or otherwise. I am unable to agree with the contention of the
learned counsel for the defendant, Mr Mohd Azlan that there is a triable
issue to proceed to trial. On the facts and circumstances in the instant
case, which includes the various documents attached to the affidavits of
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both parties and marked as exhibits, I find that the defence or issue raised
by the defendant is clearly unsustainable in law or on the facts, thus
averting the need for a full trial. Moreover, upon a scrutiny of the affidavit
evidence adduced by the plaintiff and considering the circumstances as a
whole, I find that the assertions by the defendant to be bare statements
without any evidential support. I am satisfied that there is no triable issue in
the instant case and neither are there any other reasons for a trial. Further,
the plaintiff had succeeded in producing sufficient evidence to eliminate the
need for a trial under both the limbs and have satisfied all the requirement
and procedure for a summary judgment to be enterred against the
defendant as established by the Federal Court in the case of Cempaka
Finance Bhd v. Ho Lai Ying & Anor [2006] 3 CLJ 544. In this case the
Court enunciated:
“Quite clearly, the Court of Appeal has put the burden on the plaintiff to
prove his case in an O. 14 application. With respect, that cannot be the
correct proposition of law. In an application under O. 14, the burden is on
the plaintiff to establish the following conditions: that the defendant must
have entered appearance; that the statement of claim must have been
served on the defendant; that the affidavit in support must comply with r. 2
of O. 14 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. (See
Supreme Leasing Sdn Bhd v. Dior Enterprises & Ors [1989] 1 LNS
144; [1990] 2 MLJ 36.) Once those conditions are fulfilled, the burden
then shifts to the defendant to raise triable issues.”
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To sum up, I find that the learned magistrate has not erred in entering
summary judgment for the plaintiff/respondent. Therefore, the appeal ought
to be and is dismissed with costs of RM500.00. The decision of the learned
magistrate given on 2nd October, 2009 is thereby affirmed.
Appeal dismissed with costs.
SURAYA OTHMAN
Judge, Civil Court 4,
High Court of Malaya
Shah Alam, Selangor.
Dated this 13th day of July 2010.
Case(s) referred to:
1.
Ng Hee Thoong & Anor vs Public Bank Berhad [1995] 1 MLJ 281
2.
Noh Hyoung Seok v Perwira Affin Bank Berhad [2005] 655
3.
Alloy Automotive Sdn Bhd v Perusahaan Ironfield Sdn Bhd [1986] 1 MLJ 382;
4.
Overseas Investment Pte Ltd v Anthony William O’Brien & Anor [1998] 3 MLJ
332
5.
Bank Negara Malaysia v Mohd Ismail & Ors [1992] 1 MLJ 400
6.
Abdul Rahim Abdul Hamid & Ors v. Perdana Merchant Bankers & Ors [2000] 2
CLJ 457 CA
7.
Malayan Insurance (M) Sdn Bhd v Asia Hotel Sdn Bhd [1987] 2 MLJ 183
8.
Perwira Affin Merchant Bank Bhd v. Dato’ Soh Chee Wan [2003] 3 MLJ 555
9.
Cow v. Casey [1949] 1 All ER 197
10.
European Asian Bank AG v Punjabi & Sind Bank [1983] 2 All ER 508
14
11.
Perbadanan Pembangunan Ekonomi Sarawak v. Sarawak Motor Industries Bhd
[1989] 1 LNS 59Perbadanan Pembangunan Ekonomi Sarawak v. Sarawak Motor
Industries Bhd [1989] 1 LNS 59
12.
Esso Standard Malayan Berhad v Southern Cross Airways (M) Bhd [1972] 1 MLJ 168
13.
Huo Heng Oil Co. (EM.) Sdn. Bhd. v. Tang Tiew Yong [1984] 1 LNS 45,
14.
Hookham v Mayle (1906) 22 TLR 241
15.
Wallingford v Mutual Society (1880) 5 App Cas 685 HL
16.
Harris v Gamble (1878) 7 ChD 877
17.
Chen Heng Ping & Ors v. Intradagang Merchant Bankers (M) Bhd [1995] 3 CLJ
690
18.
Isume Co. Pte. Ltd. v. Ho Shing Construction Co. Pte. Ltd. [1987] 1 LNS 14;
[1987] 2 MLJ 571
19.
Pernas Trading Sdn. Bhd. v. Persatuan Peladang Bakti Melaka [1979] 1 LNS 65;
[1975] 1 MLJ 124 FC,
20.
Niaga Tani Sdn Bhd v. Samarez Holdings Berhad [2004] 1 LNS 165; [2005] 1
MLJ 239
21.
Cempaka Finance Bhd v. Ho Lai Ying & Anor [2006] 3 CLJ 544
22.
Supreme Leasing Sdn Bhd v. Dior Enterprises & Ors [1989] 1 LNS 144; [1990] 2
MLJ 36
Legislation referred to:
1.
Order 26A, Subordinate Courts Rules, 1980 (SCR 1980)
2.
Order 26A Rule 1
Solicitor:
Encik Govin Durai [Tetuan Govin, T. Durai & Co] for Plaintiff.
Encik Mohd Azlan [Tetuan Gunaseelan & Associates] for Defendant.
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