INTERCARGO SHIPPING & FORWARDING SDN. BHD. ANDELI MALAYSIA SDN. BHD.

BA-12ANCvC-115-11/2020 Kand. 39 05/07/2022 14:11:03 1 DALAM MAHKAMAH TINGGI MALAYA DI SHAH ALAM 2 DALAM NEGERI SELANGOR DARUL EHSAN 3 (RAYUAN SIVIL NO: BA-12ANCVC-115-11/2020) 4 5 ANTARA 6 7 INTERCARGO SHIPPING & FORWARDING SDN BHD 8 (No. Pendaftaran Syarikat : 223047 – K) ... PERAYU 9 10 DAN 11 12 ANDELI MALAYSIA SDN BHD 13 (No. Pendaftaran Syarikat : 669801 – U) ...RESPONDEN 14 15 DALAM MAHKAMAH SESYEN DI SHAH ALAM 16 DALAM NEGERI SELANGOR DARUL EHSAN 17 (GUAMAN SIVIL NO: BA-A52NCVC-102-05/2020) 18 19 ANTARA 20 21 INTERCARGO SHIPPING & FORWARDING SDN BHD 22 (No. Pendaftaran Syarikat : 223047 – K) ... PLAINTIF 23 24 DAN 25 26 ANDELI MALAYSIA SDN BHD 27 (No. Pendaftaran Syarikat : 669801 – U) ...DEFENDAN 28 29 1 S/N 7TuDbfS6XEyDHfJevWsOIQ **Note : Serial number will be used to verify the originality of this document via eFILING portal 1 GROUNDS OF JUDGMENT 2 3 Introduction 4 (1) This was an appeal filed by the Plaintiff against part of the decision 5 of the Sessions Court Judge dated 6.11.2020 whereby the Plaintiff’s 6 application for summary judgment against the Defendant was allowed for 7 the sum of RM135,000 but ordered parties to proceed with full trial for the 8 balance sum of RM302,336.27. 9 10 (2) This appeal by the Plaintiff herein concerns only the balance claim 11 amount of RM302,336.27 plus post-judgment interest. 12 13 (3) The Defendant filed a notice of cross appeal against the decision of 14 the SCJ in awarding interest on the judgment sum as well as costs. 15 16 (4) I allowed the Plaintiff’s appeal and dismissed the Defendant’s cross 17 appeal. 18 19 (5) The Defendant is aggrieved with that decision, hence has filed an 20 appeal to the Court of Appeal against the decision of this court. 21 22 (6) Here are the grounds of my decision. I have continued to refer to the 23 parties as they were referred to in the court below. 24 25 Background Facts 26 (7) The salient background facts can be found from the pleadings and 27 the written submissions of the parties. I will reproduce them here with 28 necessary modifications. 2 S/N 7TuDbfS6XEyDHfJevWsOIQ **Note : Serial number will be used to verify the originality of this document via eFILING portal 1 (8) The Plaintiff is a logistic company and a forwarding agent having its 2 principle business address in Bintulu Sarawak. The Defendant is a 3 company with limited liability having a business address in Taman Kinrara, 4 Puchong, Selangor. 5 6 (9) At the request of the Defendant from June 2019 until January 2020, 7 the Plaintiff rented to the Defendant several types of equipment including 8 inter alia sky lift, scissor lift, backhoe loader and boom lift (the equipment) 9 at a rate agreed to as stated in the Plaintiff’s quotations. 10 11 (10) Apart from that the Plaintiff also provided ancillary services to the 12 Defendant such as mobilization, equipment repairs and maintenance as 13 well as supplying diesel to the equipment hired by the Defendant. 14 15 (11) The Plaintiff claims that the salient terms of the contract between 16 the Plaintiff and the Defendant for the rental of the equipment and for the 17 services rendered were as follows : 18 19 (i) The Defendant shall settle all payments within the time 20 period stipulated in the invoices; and 21 22 (ii) If the Defendant fails to do so, interest at the rate of 3% 23 per month shall be levied on each invoice that remains 24 due and payable until the same is settled in full. 25 26 (12) The Plaintiff issued invoices to the Defendant for the total 27 outstanding sum of RM455,135.96. The Defendant failed to pay the sum 28 outstanding despite repeated reminders. 29 3 S/N 7TuDbfS6XEyDHfJevWsOIQ **Note : Serial number will be used to verify the originality of this document via eFILING portal 1 (13) Despite a notice of Demand dated 5.2.2020 being issued, the 2 Defendant failed, refused and/or neglected to pay the outstanding sum of 3 RM469,629.70 which is inclusive of late payment interest. 4 5 (14) The Plaintiff thus filed a civil suit against the Defendant in the 6 Sessions’ Court to recover the outstanding sum and subsequently filed a 7 summary judgment application. 8 9 Decision of the Sessions Court 10 (15) The learned Sessions Judge (LSJ) allowed the Plaintiff’s application 11 in part as follows : 12 (1) judgment sum of RM135,000.00; 13 (2) interest at the monthly rate of 3% on the judgment sum 14 of RM135,000.00 from the date each invoice is due and 15 payable until the judgment date; 16 (3) post judgment interest at the rate of 5% p.a on the 17 judgment sum of RM135,000.00 from the judgment date 18 until the date of full settlement of the judgment sum; and 19 (4) costs of RM3000.00. 20 21 (16) The LSJ further ordered the remaining sum of RM302,336.27 22 together with the contractual and post-judgement interest be decided 23 through a full trial. 24 25 Issues raised by the Defendant to oppose the Summary Judgement 26 Application 27 (17) The Defendant raised a few issues, which it claims are triable issues 28 and ought to be ventilated at a full trail. 29 4 S/N 7TuDbfS6XEyDHfJevWsOIQ **Note : Serial number will be used to verify the originality of this document via eFILING portal 1 (18) The triable issues raised were as follows : 2 (i) the imposition of 3% per month on late payment interest was 3 never agreed to by the Defendant and there was no written 4 agreement between the parties which expressly provided for 5 late interest payment; 6 (ii) there were no proper documentary evidence in the form of 7 Purchase Orders, Delivery Orders followed by Invoices to 8 prove that the Defendant actually owed the Plaintiff the 9 amount claimed; 10 (iii) the Defendant had not issued any purchase orders as claimed 11 by the Plaintiff; 12 (iv) the Defendant denied ever receiving any Invoices from the 13 Plaintiff; 14 (v) the Defendant had never requested for labour supply yet the 15 Plaintiff had billed them for it; and 16 (vi) a third party Meco Precision Engineering Sdn Bhd in its letter 17 dated 17.7.2020 admitted that it had placed the order for 18 Equipment rental and Services. It was thus contended that the 19 Plaintiff should have directed the balance claim against the 20 said company instead of the Defendant. 21 22 Evaluation and Findings of this Court 23 (19) This Court shall decide the application afresh by way of a rehearing. 24 This is provided for in accordance with the provisions in Order 55 rule 2 25 ROC 2012. 26 27 (20) The law in respect of summary judgment proceedings have long 28 been established in a number of cases. Most notable of all would be the 5 S/N 7TuDbfS6XEyDHfJevWsOIQ **Note : Serial number will be used to verify the originality of this document via eFILING portal 1 case of Bank Negara Malaysia v Mohd Ismail & Ors [1992] 1 CLJ Rep 2 14 where Azmi SCJ said : 3 4 “Under an O. 14 application, the duty of a judge does not end as soon 5 as a fact is asserted by one party, and denied or disputed by the other 6 in an affidavit. Where such assertion, denial or dispute is 7 equivocal, or lacking in precision or is inconsistent with undisputed 8 contemporary documents or other statements by the same 9 deponent, or is inherently improbable in itself, then the judge has a duty 10 to reject such assertion or denial, thereby rendering the issue not triable. 11 In our opinion, unless this principle is adhered to, a judge is in no position 12 to exercise his discretion judicially in an O. 14 application. Thus, apart 13 from identifying the issues of fact or law, the court must go one step 14 further and determine whether they are triable. This principle is 15 sometimes expressed by the statement that a complete defence need 16 not be shown. The defence set up need only show that there is a triable 17 issue.” 18 19 (21) For the record, I must say that I am satisfied that the preliminary 20 requirements for an O. 14 application have been satisfied here i.e. that 21 the SOC has been served on the Defendant, the Defendant has entered 22 appearance and that the Affidavit in support of the application has 23 complied with the requirements of r. 2 of O. 14 ROC 2012. 24 25 (22) Having satisfied those preliminary requirements mentioned above 26 the Plaintiff would have established a prima facie case and the burden is 27 shifted to the Defendant to satisfy the Court why judgement should not be 28 entered against him (see National Company for Foreign Trade v Kayu 29 Raya Sdn Bhd [1984] 1 CLJ (Rep) 283). 6 S/N 7TuDbfS6XEyDHfJevWsOIQ **Note : Serial number will be used to verify the originality of this document via eFILING portal 1 (23) The burden is on the Defendant to raise triable issues. Whether an 2 issue is triable or not must certainly depend on the facts of the particular 3 case. 4 5 (24) The Plaintiff’s claim against the Defendant for the sums owing is not 6 based on a formal agreement or contract. In order to support its claim, the 7 Plaintiff has referred to quotations, purchase orders, delivery orders, 8 invoices and statements of account which it contends has sufficiently 9 proven the formation and performance of the contract in regard to the 10 equipment rental and services between the parties. 11 12 (25) The Court agreed with the Plaintiff’s contention above. In coming to 13 a decision in this case, I would agree that due emphasis ought to be 14 placed on the written documents. Here the Plaintiff has exhibited the 15 quotations, purchase orders, delivery orders, Invoices and Statement of 16 Account. While it is conceded that there is no formal contract drawn 17 between the parties, those documents I mentioned earlier would 18 collectively constitute a binding contract which has been reduced into 19 writing. My view is supported by the decision of Caltex Oil Malaysia Ltd 20 v Classic Best Sdn Bhd & Ors [2007] 4 MLJ 772 where Suriyadi J (as 21 he then was) held as follows : 22 23 “In coming to a decision in cases involving goods sold and delivered 24 such as in this case, I would place due emphasis on the written 25 documents, delivery notes and the debit notes. These documents would 26 collectively constitute a contract reduced into writing.” 27 28 (26) Here I have taken note that the Plaintiff has produced proof of its 29 contract with the Defendant pertaining to the Equipment Rental and 7 S/N 7TuDbfS6XEyDHfJevWsOIQ **Note : Serial number will be used to verify the originality of this document via eFILING portal 1 Services provided to the Defendant through the following documents as 2 follows : 3 4 (i) Quotations issued to the Defendant (see pgs 121, 122, 126, 5 129 and 133 of the Record of Appeal). 6 7 (ii) Purchase Orders that were issued by the Defendant to the 8 Plaintiff (see pgs 120, 127, 132, 135, 137, 140, 148, 150, 152, 9 154, 161, 168,180, 191, 195 and 197 of the Record of Appeal). 10 These Purchase Orders were accepted by the Plaintiff and 11 hence it followed that the terms and conditions stated therein 12 were similarly agreed to. 13 14 (iii) Invoices at pges 118 to 250, 251 to 259 of the Record of 15 Appeal. These invoices were attached with other supporting 16 documents. 17 18 (iv) Delivery Orders which were acknowledged receipt of by the 19 Defendant or its representative (see pgs 123 to 125, 130, 141 20 to 143 and 162 to 164 of the Record of Appeal. 21 22 (v) Statement of Account dated 18.2.2020 of the outstanding sum 23 owing by the Defendant (see pgs 116 to 117 Record of 24 Appeal). 25 26 (vi) Rental Time Cards issued and duly acknowledged by the 27 Defendant’s authorised representative at the operation site 28 (see pgs 165 to 166 Record of Appeal). 8 S/N 7TuDbfS6XEyDHfJevWsOIQ **Note : Serial number will be used to verify the originality of this document via eFILING portal 1 (vii) Service Notes and invoices for the spare parts suppliers were 2 attached to the Invoices (see pgs 203 to 204 Record of 3 Appeal). 4 5 (viii) Receipts for payment of diesel from petrol stations (see pgs 6 252 to 254 Record of Appeal). 7 8 (27) All of the above were sent and received by the Defendant. This is 9 confirmed through the Affidavit in Support of the Plaintiff’s Billing Clerk 10 dated 3.8.2020. When the Defendant failed to respond with payment, the 11 Plaintiff issued letters of demand. It is pertinent to note that the Defendant 12 had not raised any objection, protest or queries with regards to all the 13 documents furnished. This would in my view draw the conclusion that the 14 Defendant was satisfied with the performance and completion of the 15 Plaintiff’s obligations in those transactions as listed in the PO, DO, 16 Invoices and Statement of Account sent to the Defendant. The Defendant 17 did not raise any dispute as to the existence of the billed transactions as 18 well as its contents i.e. the work done, the price and the other particulars 19 as mentioned in the invoices in regard to the rental of the equipment and 20 the other services rendered at the request of the Defendant. It is my 21 considered view that the Defendant is estopped now from questioning the 22 abovementioned documents or its contents. If indeed the Defendant 23 disputed the contents of the documents as well as the amount claimed by 24 the Plaintiff or that the rental of the items were done by some other third 25 party then the Defendant should have immediately raised its objections 26 there and then and not after this action is filed. 27 28 (28) As I have noted earlier the Defendant did not reply to the Plaintiff 29 solicitor’s Letter of Demand. Instead shortly after receiving the Notice of 9 S/N 7TuDbfS6XEyDHfJevWsOIQ **Note : Serial number will be used to verify the originality of this document via eFILING portal 1 Demand the Defendant’s staff sent an email dated 14.2.2020 to the 2 Plaintiff and enquired as to the calculation of the late payment interest 3 imposed. The Plaintiff immediately furnished a detailed explanation and 4 enclosed the method of calculation for the interest levied to the Defendant. 5 Thereafter the Plaintiff did not hear from the Defendant anymore. 6 Reminders were also sent to the Defendant directly via email. This brings 7 to the forefront of my mind yet again the decision in Caltex Oil Malaysia 8 Ltd (supra) where it was held that : 9 10 “In the case of Syarikat Tan Thiam Siong Sdn Bhd [1983] CLJ 256, also 11 a case on goods sold and delivered, the High Court, granting the 12 Plaintiff’s application for Summary Judgment held that: The law is that 13 in the event of non-query an account-stated came into existence which 14 created an estoppel against the defendant from querying the accounts 15 thereafter…” 16 17 (29) The same situation arose here whereby the Defendant did not 18 dispute nor raise any protest with regard to the contents of the Letter of 19 Demand that was received. All the Defendant did was to make an enquiry 20 about the late payment charges. There was no outright denial with regard 21 to the amount said to be outstanding. 22 23 (30) In the case of Multi Square Sdn Bhd v Lee Chee Meng [2015] 1 24 LNS 187 the Court held : 25 26 “More importantly, the Defendant’s failure to reply and to pay the sum to 27 the Plaintiff, upon the Legal Demand, fortifies the Plaintiff’s claim for the 28 Sum.” 29 10 S/N 7TuDbfS6XEyDHfJevWsOIQ **Note : Serial number will be used to verify the originality of this document via eFILING portal 1 (31) In reliance on the authorities above, I am satisfied that any issues 2 raised by the Defendant now is nothing more than an afterthought and 3 ought to be rejected. As the Defendant did not question the invoices 4 received, it is now precluded from raising any dispute pertaining to the 5 existence of the dealings with the Plaintiff and the Defendant as well as 6 the amount owing to the Plaintiff. 7 8 (32) The Defendant had in its Affidavit in Reply admitted to a number of 9 invoices i.e. item numbers 1, 2, 4, 5, 6, 8, 9, 10, 26, 27 and 30 of Appendix 10 A to the Statement of Claim. Except for those undisputed invoices the 11 Defendant has denied receiving the rest of the invoices in the present 12 claim. This denial was only raised for the first time in the Defendant’s 13 Statement of Defence which is dated 3.7.2020. Prior to that the 14 Defendant’s employee had not raised this matter in the email dated 15 14.2.2020 when there was an enquiry with regard to the imposition of late 16 payment interest. The Defendant had not taken the opportunity to 17 question the documents, the rental of the equipment or the amount owing. 18 In view of the foregoing I find that by raising the issue after the 19 commencement of this action amounts to nothing but a mere afterthought 20 and ought not to be entertained. 21 22 Absence of Purchase Orders 23 (33) The Defendant has averred that apart from the undisputed invoices, 24 it had never issued any purchase orders for the Equipment Rental and 25 Services. 26 27 (34) In reply to this, the Plaintiff has conceded that not every invoice is 28 supported by a purchase order and a delivery order. However, be that as 29 it may it was explained that some equipment rented by the Defendant 11 S/N 7TuDbfS6XEyDHfJevWsOIQ **Note : Serial number will be used to verify the originality of this document via eFILING portal 1 were dispatched to the operation site for a few months. In this situation 2 the Plaintiff had issued the invoices for the first and the following months 3 until the equipment is returned. Under those circumstances the invoices 4 issued on a monthly basis were based on the original purchase order. It 5 followed too that there would not be any further delivery order for those 6 invoices as the equipment had already been despatched to the operation 7 site. The Plaintiff illustrated this explanation with Invoice number 8 E/190737(pg 136 RA) for rental of a sky lift bearing registration number 9 WVE 9836 from 23.7.2019 to 22.8.2019. As it happens the said invoice 10 issued is based on the Defendant’s purchase order number AP1907 – 11 1310M-BTL (pg 137 RA). For the following months i.e. from 23.8.2019 to 12 3.9.2019, the invoice number was issued based on the same purchase 13 order number AP1907 – 1310M-BTL. 14 15 (35) The Defendant has not attempted to produce any document in its 16 possession to prove that this equipment was not rented for the said period 17 of time or that it had been returned to the Plaintiff or that the hiring of the 18 equipment ended earlier than the hiring period as stated in the invoices 19 and therefore on the supporting documentary evidence provided by the 20 Plaintiff, the court finds the explanation to be reasonable and has merits. 21 In view of the fact that the Defendant has offered no evidence to the 22 contrary, I would agree with due respect the Defendant’s contention that 23 this raises a triable issue is devoid of merit and untenable. 24 25 Manpower Supply 26 (36) The Defendant disputed the amount claimed for manpower supply 27 and asserted that labour supply was not and had never been the 28 responsibility of the Plaintiff. 29 12 S/N 7TuDbfS6XEyDHfJevWsOIQ **Note : Serial number will be used to verify the originality of this document via eFILING portal 1 (37) Having perused the disputed invoices thoroughly, a note must be 2 made to highlight the issue that those invoices relating to manpower 3 supply are E/190942, E/191192 and E191356. These 3 Invoices are 4 related to the hiring of the backhoe loader equipment and not for 5 manpower supply as alleged. Therefore, the Defendant’s dispute on this 6 amount is without any basis and in direct contradiction with the description 7 as stated in the invoices. 8 9 Repair Works 10 (38) In regard to the Defendant’s dispute for the amount claimed for 11 repair works, the Plaintiff has refuted this by referring to Clause 1 of its 12 quotation which clearly states that all costs in relation to repair and 13 maintenance of the equipment hired by the Defendant for damage caused 14 by the Defendant shall be borne by the Defendant and that the Plaintiff is 15 only responsible for repair and maintenance costs in the event of 16 equipment breakdown. The Plaintiff has shown that there were times 17 however when repair and maintenance works were urgently required and 18 these works were carried out first without waiting for a purchase order to 19 be issued. 20 21 (39) More importantly there is evidence of the Defendant having issued 22 purchase orders for repair works carried out by the Plaintiff. This is seen 23 in pages 132 and 168 of the Record of Appeal. In light of these 24 contemporaneous documentary evidence, this court is of the view that the 25 Defendant’s objections to the sums owed must fail. 26 27 Supply of Diesel 28 (40) The Defendant has disputed this claim which is found in the invoice 29 number E/191592. The reason advanced for the dispute is because the 13 S/N 7TuDbfS6XEyDHfJevWsOIQ **Note : Serial number will be used to verify the originality of this document via eFILING portal 1 Defendant did not require the diesel supply for all equipment hired. 2 Instead the Defendant averred that if there was a need for diesel then it 3 alone would be responsible for supplying diesel to the equipment. 4 5 (41) However, the Invoice number E/191592 is evidence on record that 6 the Plaintiff had been requested to supply diesel for the use of the 7 equipment bearing vehicle registration number BKN 3174 and BKS 6453 8 on 3 occasions i.e. on 10.9.2019, 20.12.2019 and 31.12.2019. This 9 coincides with the hiring of the said vehicles during that particular period 10 as shown in the invoice numbers E/191040, E/191488 and E/191489 (see 11 pges 172, 239 and 240 Record of Appeal). 12 13 (42) Over and above it is pertinent to note too that the Defendant did not 14 raise any objection or dispute after receiving the said invoice and has 15 failed to produce any document to rebut the Plaintiff’s claim. In light of the 16 contemporaneous documentary evidence and in the absence of any other 17 evidence by the Defendant to deny it, I am of the view that the Plaintiff has 18 clearly shown that the sum owing for the supply of diesel was incurred and 19 is owing by the Defendant. I am satisfied from my perusal of the Invoices 20 that the claim for supply for diesel has been captured and displayed in the 21 said Invoices. Receipts from the petrol stations to prove that it had indeed 22 supplied diesel to some equipment hired by the Defendant has also been 23 exhibited. Hence the Defendant’s contention is only a bare denial. A mere 24 assertion is insufficient to deny the Plaintiff’s application for summary 25 judgment of the said sums owing. 26 27 Imposition of Late Payment Interest 28 (43) Apart from the amount owing, the Plaintiff has also claimed for late 29 payment interest at the rate of 3% per month until full realization. The 14 S/N 7TuDbfS6XEyDHfJevWsOIQ **Note : Serial number will be used to verify the originality of this document via eFILING portal 1 imposition of late payment interest at the monthly rate of 3% is clearly 2 stated in Clause 8 of the Plaintiff’s quotation as well as at the bottom of 3 each invoice that was issued to the Defendant. Yet again the observation 4 is that the Defendant accepted the imposition of late payment interest as 5 quoted in the quotation through its purchase order. The Defendant did not 6 dispute the similar term found in the Invoices sent to them. If the 7 Defendant did not agree to the imposition of late payment interest, it 8 should have protested immediately to the Plaintiff. It would not have 9 proceeded to issue its purchase order at all. As such in my view the 10 Defendant unconditionally and unequivocally accepted that late payment 11 interest would be levied in the event of any failure to make payment within 12 the prescribed time. The Defendant cannot deny this claim as this was 13 clearly indicated in the quotations and Invoices sent to them. 14 15 (44) Neither did the Defendant question the Plaintiff’s right to impose late 16 payment interest on all overdue amounts after it received the notice of 17 demand dated 5.2.2020 from the Plaintiff’s solicitor. All the Defendant did 18 was to request the Plaintiff to provide the details or method of calculation 19 of the late payment interest. Apart from that query the Defendant did not 20 protest or question the Plaintiff’s right to impose the late payment interest 21 on all the overdue sums owing by the Defendant. In light of the foregoing 22 I am of the view that the Defendant is estopped from challenging the 23 imposition of the late payment interest at the monthly rate of 3% on the 24 unpaid invoices. 25 26 (45) I find guidance in the case of Tansa Enterprise Sdn Bhd v 27 Temenang Engineering Sdn Bhd [1994] 1 MLJ 353 where the learned 28 High Court Judge faced a similar issue and decided as follows : 29 15 S/N 7TuDbfS6XEyDHfJevWsOIQ **Note : Serial number will be used to verify the originality of this document via eFILING portal 1 “In respect of the claim of interest of 1.5% per month for overdue 2 accounts by the Plaintiff, the defendant cannot deny this claim as it had 3 full knowledge of this as clearly indicated in the invoices submitted to it 4 by the plaintiff and there was no protest of this claim at all when the 5 invoices were presented to the defendant. I am therefore of the view that 6 the plaintiff is entitled to claim such interest. It is similarly not a triable 7 issue at all.” 8 9 (46) In Enco Systems Sdn Bhd v Soon Hin Hardware Sdn Bhd [2009] 10 9 MLJ 535 the Court rejected a similar argument and held as follows : 11 12 “It is clear from the materials disclosed by the affidavits that the plaintiff 13 had, right from the beginning of the business transaction informed the 14 defendant of its intention to impose interest after the 60 days grace 15 period if payment is not received for the goods sold and delivered to the 16 defendant. On the other hand, the defendant has not produced any 17 counter evidence to raise any triable issue which requires oral 18 examination on the claim for the said interest payment. 19 … 20 Based on the totality of the evidence produced by both parties, this court 21 is satisfied that the issue raised by the defendant is not a triable issue 22 but merely an issue raised as an afterthought to delay the plaintiff’s claim 23 for summary judgement and the plaintiff’s entitlement for the interest 24 payment as claimed. The defendant cannot raise an issue and contend 25 that it is a triable issue in the face of their admission for failure to protest 26 at the first available opportunity against the claim for interest payment 27 as endorsed in the delivery orders and invoices when it was received by 28 them, or at least in their letter dated 8 March 2004….” 29 30 (47) Similarly, I too find that the failure to protest at the earliest 31 opportunity against the imposition of the late payment interest is a 32 significant factor influencing me to reject that argument. I do not accept 16 S/N 7TuDbfS6XEyDHfJevWsOIQ **Note : Serial number will be used to verify the originality of this document via eFILING portal 1 this as a triable issue requiring the court to call for a full trial to be carried 2 out. 3 4 (48) On this score I find that the LSJ was correct when she found that 5 the Plaintiff was entitled to charge late payment interest against the 6 Defendant. I however find that the LSJ should have allowed the Plaintiff’s 7 claim for late payment interest to be calculated at the agreed monthly rate 8 of 3% per annum until the judgment is satisfied in full instead of until date 9 of judgement as she did. This is because Order 42 rule 12 provides as 10 follows : 11 12 “12. Interest on judgment debts (O42 r 12) 13 Subject to rule 12A, except when it has been otherwise agreed 14 between the parties, every judgment debt shall carry interest at such 15 rate as the Chief Justice may from time to time determine or at such 16 other rate not exceeding the rate aforesaid as the Court determines, 17 such interest to be calculated from the date of judgment until the 18 judgment is satisfied.” 19 20 (49) Order 42 rule 12 clearly allows the imposition of post-judgement 21 interest based on the contractual rate of 3% per month as agreed by the 22 parties. Only if there is an absence of any agreed interest rate can the 23 court impose post-judgment interest at 5% per annum as determined by 24 the Chief Justice. 25 26 (50) As such I am of the view that the LSJ should have enforced and 27 given full effect to the terms of the contract and imposed post judgement 28 interest at the agreed monthly rate of 3% instead of 5% p.a. 29 30 17 S/N 7TuDbfS6XEyDHfJevWsOIQ **Note : Serial number will be used to verify the originality of this document via eFILING portal 1 Admission made by a Third Party Company 2 (51) The Defendant has alleged that a third party, one Meco Precision 3 Engineering Sdn Bhd had procured the rental of the equipment and was 4 owing the Plaintiff the sum of RM289,336.27. The Defendant exhibited a 5 letter dated 17.7.2020 by Meco Precision Engineering Sdn Bhd in its 6 Affidavit in Support whereby based on the contents of the letter, this third 7 party company admitted that it had solely required and gained benefits 8 from the Equipment Rental and services and not the Defendant. The 9 Plaintiff has denied the said allegation and has maintained that it had all 10 along dealt solely with the Defendant company only. 11 12 (52) In the said letter the third party has confessed to the following : 13 14 “We refer to the above matter whereby we are the sub-contractor of 15 Andeli Malaysia Sdn Bhd… 16 3.1 That the rental of the following items from your company were done 17 solely by us orally through our representative at the project site without 18 the consent, authorization, instruction and/or whatsoever from Andeli 19 Malaysia Sdn Bhd. 20 3.2 We undertake to pay you the outstanding amounting of 21 RM289,336.27 being itemized billings at para 3.1 above and all claims 22 shall be directed to us and not Andeli Malaysia Sdn Bhd. 23 4. We hope with the clarification above, the matter could be resolved 24 amicably without prolonged litigation.” 25 26 (53) It is interesting to note that the alleged dealings of the third party 27 was never pleaded by the Defendant in its Statement of Defence. I am 28 inclined to agree with counsel for the Plaintiff’s contention that the alleged 29 involvement of the third party and the said letter are all concoctions sprung 30 up in order to deny the Plaintiff of its rightful claim. The letter is not a 18 S/N 7TuDbfS6XEyDHfJevWsOIQ **Note : Serial number will be used to verify the originality of this document via eFILING portal 1 contemporaneous document since it was written only after the action was 2 filed in court. Had the LSJ considered this matter more carefully she would 3 have realised the letter was only issued on 17.7.2020, 2 weeks after the 4 Statement of Defence was filed and about 2 months after the Writ action 5 began. Had that been considered the LSJ would certainly have refused to 6 accept the contents of the letter to be supportive of the Defendant’s 7 defence. This is crucially so when the contents of the letter issued by the 8 third party admitting to its indebtedness to the invoices disputed by the 9 Defendant was in direct contradiction with the purchase orders issued by 10 the Defendant itself. Reference is made to the invoice numbers E/190710 11 and E/190995 (pgs 131 and 167 of the Record of Appeal), which Meco 12 Precision Engineering Sdn Bhd claimed was requested by them. 13 However, the Purchase Orders clearly show that it was issued by the 14 Defendant (pgs 132 and 168 of the record of Appeal). The heavy duty 15 equipment and services were rendered based on the orders and 16 instructions of the Defendant to the Plaintiff as proven through the 17 quotations, the purchase orders, delivery orders and the invoices. These 18 documents are proof of the contractual relationship between the Plaintiff 19 and the Defendant. No other documents were exhibited to support the 20 allegation made by Meco Precision Engineering. 21 22 (54) Again, at risk of repetition, if what the Defendant alleged is true, it 23 would have immediately informed the Plaintiff that it was not them but the 24 third party who had impersonated them to make the orders. The 25 irresistible conclusion to be drawn would be that the denial at this stage 26 of the proceedings bearing in mind that it was not raised at all in the 27 Statement of Defence showed that the involvement of the third party is 28 improbable and is a sham. In view of that the LSJ should have found the 29 contents of the letter highly suspicious and should have rejected it. 19 S/N 7TuDbfS6XEyDHfJevWsOIQ **Note : Serial number will be used to verify the originality of this document via eFILING portal 1 Costs of the Application 2 (55) The Defendant takes issue with the award of costs of RM3000 to 3 the Plaintiff by the LSJ claiming that it should have been entitled to costs 4 for successfully resisting the application. The short answer to this is to 5 refer to the case of Malaysia Industrial Development Finance Bhd v 6 Arahektar Bina Sdn Bhd & Ors [2012] 10 MLJ 153 where the High Court 7 allowed summary judgment against the defendants in part with costs 8 favouring the plaintiff in the case. The learned Judge held as follows : 9 10 “[29] Having decided on the question of law the way I did for the reasons 11 I had given, I had no doubt that the plaintiff’s application for summary 12 judgment for claims under the first HPA must be allowed and I so 13 allowed judgement to be entered for prayers (a) – (b) of the claims only 14 with half the fixed costs for summary judgment.” 15 16 (56) I find no valid grounds to disturb the decision of the LSJ on this 17 issue. I am of the view that the LSJ was correct in her decision to allow 18 costs to the Plaintiff and none to the Defendant. 19 20 Conclusion 21 (57) It was pointed out to the court that the LSJ made a mistake in leaving 22 out an admitted Invoice number E/190889 which is Item 10 of Appendix A 23 to the Statement of Claim. The amount shown in this invoice is for the sum 24 of RM13,000. Since this is an undisputed amount, it should have been 25 added into the judgment of the LSJ. The error in calculation is taken note 26 of and I agree that the judgement sum allowed by the LSJ should have 27 been RM148,000 instead of RM135,000. 28 29 (58) In the final analysis I found that the Defendant had failed to raise 30 any triable issues which were worthy of setting it down for trial. Based on 20 S/N 7TuDbfS6XEyDHfJevWsOIQ **Note : Serial number will be used to verify the originality of this document via eFILING portal 1 the reasons stated above, I am of the view that summary judgment should 2 have been entered for the full sum as claimed by the Plaintiff. 3 4 (59) I allow the Plaintiff’s appeal. Accordingly, the Order of the LSJ is 5 varied and replaced with an order in terms of the summary judgment 6 application by the Plaintiff. 7 8 Dated 24 June 2022. 9 10 11 12 (JULIE LACK) 13 Judge 14 High Court of Malaya 15 Shah Alam, Selangor Darul Ehsan 16 17 18 19 20 21 22 Counsel 23 For the Appellant : 24 Ong Ewe Lim 25 (MESSRS. EDWIN ONG CHAMBERS) 26 27 For the Respondent : 28 Asmawi Bin Ismail 29 (MESSRS. TAY PUAY CHUAN & CO.) 21 S/N 7TuDbfS6XEyDHfJevWsOIQ **Note : Serial number will be used to verify the originality of this document via eFILING portal