EVERGREEN ADHESIVE & CHEMICALS (GURUN) SDN. BHD. (NO. SYARIKAT: 908762-W) 1. ) 1. AL ASIA CHEMICAL INDUSTRY SDN. BHD. (NO. SYARIKAT: 854619-X) 2. ) 2.WONG KAM YEONG (NO. K/P: 820528-07-5339) 3. ) 3. LISA OCTAFIA (NO. PASPORT INDONESIA:B6120

DALAM MAHKAMAH TINGGI MALAYA DALAM NEGERI PULAU PINANG, MALAYSIA GUAMAN SIVIL NO.: PA-22NCC-16-08/2020 ANTARA EVERGREEN ADHESIVE & CHEMICALS (GURUN) SDN. BHD. (NO. SYARIKAT: 908762-W) ...PLAINTIF DAN [1] [2] . AL ASIA CHEMICAL INDUSTRY SDN. BHD. (NO. SYARIKAT: 854619-X) . WONG KAM YEONG (NO. K/P: 820528-07-5339) LISA OCTAFIA (NO. PASPORT INDONESIA:B6120602) ...DEFENDAN-DEFENDAN GROUNDS OF JUDGMENT (LAMPIRAN 12) Introduction This the Plaintiffs application for summary judgement against the principal debtor (D1) and the 2 guarantors (D2 and D3). After hearing the respective parties’ submissions, | allowed the Plaintiff's application. These are the grounds for my decision. Background The Plaintiff sold and delivered chemicals to the 1S Defendant. This claim pertains to 4 purchase orders and invoices dated from October to December 2019, totaling RM 1,435,858.58. The Invoices and corresponding amounts are as follows: [3] [4] [5] Purchase Order Invoice Amount (RM) PO-1910/024 GL119-00130 641,532.78 PO-1911/013 GL119-00138 331,614.00 PO-1911/020 GL119-00141 163,116.00 PO-1912/011 GL119-00152 299,595.80 1,435,858.58 Limited Complaint Of the chemicals sold and delivered, the 1st Defendant's complaint is limited to only 4 out of the 11 delivery orders made pursuant to 1% mention purchase order (PO-1910/024 dated 21.10.2019). There were no complaints on the other deliveries pursuant to the purchase orders. Their complaint pertained to possible contamination or specification failure of the chemicals on the 4 deliveries. These concerns were first raised by the 1% Defendant by e-mail dated 30/10/2019. There followed a series of e-mail exchanges between the Plaintiff and 1* Defendant right up to 19/11/2019 pertaining to the possible cause of the readings showing contamination or specification failure. Complaint Unfounded The e-mails from the 1* Defendant ultimately indicated that the contamination was not attributable to the Plaintiff but to themselves or their agents. What is key is that, in the end, the 1% Defendant accepted the delivery. They certainly did not reject the goods. Accepted Goods [6] Under section 42 Sale of Goods Act 1957 (“SOGA”), the 1% Defendant is deemed to have accepted the goods: “42 Acceptance The buyer is deemed to have accepted the goods when he intimates to the seller that he has accepted them, or when the goods have been delivered to him and he does any act in relation to them which is inconsistent with the ownership of the seller, or when, after the lapse of a reasonable time, he retains the goods without intimating to the seller that he has rejected them.” Payment Due [7] Having accepted the goods, the 1% Defendant is therefore bound to pay for the goods in accordance with the terms of the sale. [8] In BHS Book Printing Sdn Bhd v. Penerbitan IMT Sdn Bhd [2016] 1 LNS 678 (“BHS”), the High Court held as follows: “19, Sections 31 and 32 SGA provide as follows: ‘31 Duties of Buyer and Seller It is the duty of the seller to deliver the goods and of the buyer to accept and pay for them in accordance with the terms of the contract of sale. 32 Payment and Delivery Concurrent Conditions Unless otherwise agreed, delivery of the goods and payment of the price are concurrent conditions, that is to say, the seller shall be ready and willing to give possession of the goods to the buyer in exchange for the price, and the buyer shall be ready and willing to pay the price in exchange for possession of the goods.’ 20. Upon the delivery of the Goods, the Defendant was obliged to pay the prices of the Goods. The Plaintiff had given 90 days “credit period” for the Defendant to pay the prices of the Goods as stated in the 21 Invoices. It is clear that under ss. 31 and 32 SGA, the Defendant had the contractual duty to pay the prices of the Goods after the expiry of the 90 days credit period. In this case, the Defendant did not dispute that the 90 days credit period had expired.” Conduct After Acceptance [9] The Plaintiffs subsequent conduct is also consistent with their acceptance of the goods: (1)They continued to purchase goods from the Plaintiff. (2)There were no further complaints about goods after that until this suit. (3)They wrote an e-mail to the Plaintiff on 01.06.2020 (Exhibit AA) requesting for time to pay the invoices. [10] In the same case of BHS, the High Court also held as follows on estoppel by conduct: “26. The estoppel principle applies here according to the following cases: (a) in the Federal Court case of Boustead Trading (1985) Sdn Bhd v. Arab-Malaysian Merchant Bank Bhd [1995] 4 CLJ 283, at 290, 294, 295, Gopal Sri Ram JCA (as he then was) held as follows:- ‘Following this correspondence, for a period of about seven months, Chemitrade sold and delivered goods to the appellant. In respect of each sale, the appellant issued a purchase order to Chemitrade which in turn issued an invoice to the appellant indicating a credit period of two months from the date of the invoice. Chemitrade then handed a copy of the invoice to the respondent who sent it to the appellant after having rubber stamped it with the following endorsement: Notice Of Assignment Payable to Arab-Malaysian Merchant Bank Bhd. 23 Floor, Bangunan Arab-Malaysian, No. 55, Jalan Raja Chulan, (P.O. Box. 11471, 50746 Kuala Lumpur) who has purchased this account. Remittance is to be made directly to them. Any objection to this bill or its terms must be reported to them within 14 days after its receipt. (When making payment please make cheque to AMMB Factoring). (Emphasis added.) It is common ground that the appellant did not make any complaint about any of the invoices thus indorsed and sent by the respondent to it within the period of fourteen days prescribed by the indorsement. Neither did the appellant make any contemporaneous challenge as to the right of the respondent to impose the fourteen day period by way of the indorsement. It is also not in issue that the appellant, without raising any question on either of these points paid the respondent on several of the invoices. The time has come for this Court to recognise that the doctrine of estoppel is a flexible principle by which justice is done according to the circumstances of the case. It is a doctrine of wide utility and has been resorted to in varying fact patterns to achieve justice. Indeed, the circumstances in which the doctrine may operate are endless. We would add that it is wrong to apply the maxim “estoppel may be used as a shield but not a sword” as limiting the availability of the doctrine to defendants alone. Plaintiffs too may have recourse to it. The true nature of the doctrine in this context is that stated by Lord Russell of Killowen in Dawsons Bank v. Nippon Menkwa Kabushiki Kaisha LR 62 IA 100, 108: Estoppel is not a cause of action. It may (if established) assist a plaintiff in enforcing a cause of action by preventing a defendant from denying the existence of some fact essential to establish the cause of action, or (to put it in another way) by preventing a defendant from asserting the existence of some fact the existence of which would destroy the cause of action.” No Other Issues [11] There no other issues raised by the Defendants. No Defence or Triable Issues [12] | was satisfied that there is no defence to the claim and that there is no issue that needs to be tried. In the premise, it was a suitable case for summary judgment. [13] In Bank Negara Malaysia v. Mohd Ismail & Ors [1992] 2 CLURep 186, the Court held as follows: “It is trite law that O. 14 is to enable a plaintiff to obtain summary judgment without trial, if he can prove his claim clearly and if the defendant is unable to set up a bone fide defence or raise an issue against the claim which ought to be tried. Thus it is stated in Anglo-ltalian Bank v Wells 38 LT p.201 that "when the Judge is satisfied not only that there is no defence but no fairly arguable point to be argued on behalf of the defendant it is his duty to give judgment for the plaintiff."” Decision [14] For the above reasons, | allowed the Plaintiff's application. Dated 22"? September 2021 WONG CHONG Judicial Commissioner High Court of Malaya, Penang PEGUAM Peguamcara Plaintif: Syed Alfiq Tetuan Anual & Foong Peguambela & Peguamcara Tingkat 5, Tamarins House, No. 46 Weld Quay, 10300 Pulau Pinang Peguamcara Defendan-Defendan: Teng Wei Hun Tetuan Vello & Associates Peguambela & Peguamcara No. 105, Anson Road, 14000 Pulau Pinang