LEAN KEE CHAN (IPOH) SDN BHD (COMPANY NO: 968232-T) SAUDI COLD STORAGE SDN BHD (COMPANY NO: 240951-U)

5 IN THE HIGH COURT IN MALAYA AT IPOH IN THE STATE OF PERAK DARUL RIDZUAN CIVIL APPEAL NO.: AA-12ANCC-2-04/2021 LEAN KEE CHAN (IPOH) SDN BHD 10 (COMPANY NO: 968232-T) …. APPELLANT AND SAUDI COLD STORAGE SDN BHD 15 (COMPANY NO: 240951-U) …. RESPONDENT IN THE MATTER OF THE SESSIONS COURT IN MALAYA IPOH, PERAK DARUL RIDZUAN CIVIL SUIT NO: AA-A52NCC-143/07/2020 20 BETWEEN SAUDI COLD STORAGE SDN BHD (COMPANY NO: 240951-U) ….. PLAINTIFF 25 AND LEAN KEE CHAN (IPOH) SDN BHD (COMPANY NO: 968232-T) …. DEFENDANT 30 JUDGMENT [1] In its claim for food products sold and supplied to the Appellant, the 35 Respondent succeeded in the Sessions Court at Ipoh in obtaining summary judgment against the Appellant for RM 370.961.76 with interest at 5% per annum from 14 July 2020 until full realisation and costs of RM 3,000.00. 1 The Appellant’s appeal to the High Court (“Court”) was dismissed on 8 November 2021 with costs of RM5,000.00. Dissatisfied, the Appellant 40 appealed to the Court of Appeal vide a notice of appeal filed on 23 November 2021 (Enclosure 20) and these are the grounds of judgment. Background Facts 45 [2] Both the Appellant and the Respondent are private limited companies registered in Malaysia. [3] The Appellant is a wholesale distributor of food related products purchased from the Respondent. 50 [4] Both parties entered into a Distributor Model-Terms of Agreement (“DMTA”) dated 14 May 2014 (Enclosure 7, p 726), where the goods sold and delivered to the Appellant were to be distributed and marketed on terms. 55 [5] The Respondent produced accounts carrying transactions commencing on 25 September 2014 until 18 September 2019 showing that the Respondent had supplied goods worth RM2,171,484.13 and after taking into account payments, discounts and incentives amounting to RM1,801,522.35, there is shown a sum of RM370,961.78 (“Claimed 60 Sum”) said to be the sum owed by the Appellant (Enclosure 4, pp 4 to 8). [6] The Respondent initiated a suit against the Appellant for the Claimed Sum (Enclosure 4, pages 1 to 9). 65 [7] In its defence, the Appellant asserted that it has paid all invoices issued 2 by the Respondent for the goods supplied (Enclosure 4, pp 10 to 12) and after taking into account the incentives provided and agreed pursuant to the DMTA, it claims it owed the Respondent nothing. 70 Application for Summary Judgment [8] On the premise that the Appellant has no defence to its claim, the Respondent applied for judgment to be entered without having to take the matter to trial pursuant to Order 14 of the Rules of Court 2012 or what is 75 commonly known as summary judgment. [9] The application (Enclosure 4, pp 17 & 18) was supported by an affidavit affirmed by the Respondent’s director (Enclosure 4, pp 19 to 26) where he had exhibited numerous statements of account, invoices and 80 delivery orders as from 25 September 2014 until 4 July 2019 (Enclosure 4, pp 27 to 180). [10] The Respondent had also issued two letters, one dated 14 October 2019 (Enclosure 4, p 182) and another dated 26 December 2019 85 (Enclosure 4, p 183), with the caption “1st” and “2nd Reminder” respectively, demanding from the Appellant the Claimed Sum. [11] The Respondent did not receive any response and, thus, engaged solicitors to file a suit against the Appellant. 90 [12] By a letter dated 25 June 2020 (Enclosure 4, p 185), the Respondent’s solicitors issued a pre-action letter demanding that the Appellant pay the Claimed Sum within seven days failing which legal 3 proceedings will ensue without any further reference and in which event, 95 the Appellant will be liable for further legal costs and interest. [13] The Appellant engaged solicitors who then replied by a letter dated 14 July 2020 (Enclosure 7, p 837) denying the claim and that the only sum owing is RM 58,884.93 and the Appellant’s cheque for this sum is still 100 awaiting collection by the Respondent. [14] In its affidavit in reply (Enclosure 5, pp 187 to 191), the Appellant’s director denied owing the Claimed Sum and asserted that the Appellant has paid for all invoices issued. He went on to depose that in the alternative, 105 based upon the Appellant’s accounts after taking into account the incentives that the Appellant was entitled to, it owed only RM58,884.93 (“Lesser Amount”). [15] The Respondent further filed two affidavits in reply (Enclosure 8, pp 110 838 to 846 and 851 to 857) and the Appellant also filed a further affidavit (Enclosure 8, pp 847 to 850). [16] In summary, the Respondent avers that the Appellant was not entitled to the incentives it claimed, notably, the incentive for early payments when 115 the Appellant had been paying after the 30-day credit term. Further, the debit notes generated by Appellant were done unilaterally and never agreed upon and, although the Appellant had exhibited a large number of documents, they were irrelevant. 120 [17] The Respondent went on to depose that the Appellant had unreasonably taken advantage of the Respondent by reducing its payments over the 5 year period from the day the DMTA was made on 14.5.2014 until 4 the final transaction of 1.1.2019 (Enclosure 8 page 844 paragraph 16) and that the Appellant had no defence to the Respondent’s claim. 125 Sessions Court [18] On 15 April 2021, the learned Sessions Court Judge decided (Enclosure 10, p 1) as follows: 130 “Setelah meneliti dan menimbangkan permohonan di Lampiran 9 Affidavit-Affidavit serta hujahan pihak-pihak Mahkamah memutuskan [untuk] membenarkan permohonan Pihak Plaintif di Lampiran 9 dengan kos sebanyak RM3000/- dibayar kepada Pihak 135 Plaintif.” [19] Dissatisfied with the decision of the learned Sessions Court Judge, the 140 Appellant appealed to the High Court by Notice of Appeal dated 27 April 2021 (Enclosure 1). [20] In another matter that came before me, Chan Lai Yoke & Anor v. ESS Engineering Sdn Bhd [2021] MLJU 2380; [2021] 1 LNS 1963; [2021] 145 AMEJ 1842; [2021] MLRHU 1898 on a summary judgment application, I had occasion to set out the law on summary judgment as follows: “Order 55 rule 2 of the Rules of Court 2012 provides that all appeals to the High Court shall be by way of re-hearing. The White Book on the 150 Malaysian Civil Procedure 2021 Volume 1, page 812 at paragraph 55/2/1 states as follows: 5 In a re-hearing, a judge is not tasked to consider whether the lower court judge had exercised his discretion correctly or had properly 155 considered the relevant material. He would consider the case as if it came before him for the first time.” (Emphasis added) The application by the Plaintiff for summary judgment ……. was principally 160 made pursuant to Order 14 rule 1 of the Rules of Court 2012, which provides as follows: “Application by plaintiff for summary judgment (O. 14 r. 1) 165 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 toa claim included in the writ, or to a particular part of such a claim, or has 170 no defence 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.” The law that an application for summary judgment should only be granted where a Defendant has no defence or if there are no triable issues to be 175 determined at trial is settled, see the oft-quoted authority of Malayan Insurance (M) Sdn Bhd v. Asia Hotel Sdn Bhd [1987] CLJ (Rep) 182; [1987] 2 MLJ 183, where the Supreme Court held that: “The underlying philosophy in the O. 14 provision is to prevent a 180 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 6 that the plaintiffis entitled to judgment. Order 14 is not intended to shut out a defendant. The jurisdiction should only be exercised in 185 very clear cases.” In resisting an application for summary judgment His Lordship, Mohd Azmi SCJ in delivering his judgment on an application for summary judgment in Bank Negara Malaysia v. Mohd. Ismail Ali Johor & Ors[1992] 1 CLJ 190 627; [1992] 1 MLJ 400 (SC) said: “The defence set up need only show that there is a triable issue….” [21] The Appellant in its written submissions (Enclosure 13) cited Bank 195 Negara Malaysia v Mohd. Ismail Ail Johor (supra) and the Court of Appeal authority of ES HVAC Sdn Bhd v. Miracle Asset Builder Sdn Bhd [2019] 1 LNS 209; [2019] 3 MLJ 485 for the trite principle that the Order 14 jurisdiction is only to be exercised in very clear cases. Reliance was also placed on the other oft-cited Court of Appeal authority of Noh Hyoung Seok 200 v. Perwira Affin Bank Bhd [2004] 2 CLJ 64; [2004] 2 MLJ 203 for the same principle set out in Bank Negara Malaysia v Mohd. Ismail Ali Johor (supra) and that it is not the function of the trial judge in an Order 14 application to delve into the merits of the case and decide whether the defendant is likely to succeed or fail. 205 [22] Learned counsel for the Appellant went on to cite the authorities of Banque de Paris et des Pays Bas (Suisse) SA v. de Naray [1984] 1 Lloyd’s rep 21 and Bhogal v. Punjab National Bank, Basna v Punjab National Bank [1988] 2 All ER 296 for the principle that an Order 14 210 application is not decided by weighing two affidavits and the correctness of factual assertions cannot be decided in an application for summary judgment. 7 [23] The Appellant asserted that a meticulous examination of the 215 documentary evidence must not be done and given the voluminous documents presented to the Court in its affidavits, such an exercise “could” not be attempted by the Court at this stage as oral evidence must be led to explain the same (Enclosure 13, paragraphs 18 and 19). I think the learned counsel meant to assert that this Court should not attempt to 220 carry out ameticulous examination of the documentary evidence laid before the Court. [24] To the Appellant, the vital point is that the issue of how much incentives and discounts it is entitled to, is the issue that needs to be investigated further 225 at trial and, therefore, the summary judgment ordered by the learned Sessions Court Judge ought to be set aside (Enclosure 13, paragraphs 11 and 12). [25] However, the Supreme Court in Bank Negara Malaysia v Mohd 230 Ismail Ali Johor & Ors (supra) speaking through His Lordship, Mohd Azmi SCJ said: “Under an O. 14 application, 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 235 on 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 as not triable. In our opinion, 240 unless this principle is adhered to, a Judge is in no position to exercise his discretion judicially under an O. 14 application. Thus, apart from identifying the issues of fact or law, the Court must go one step further and determine 8 whether they are triable. This principle is sometimes expressed by the statement that a complete defence need not be shown. The defence set up 245 need only show that there is a triable issue.” (Emphasis added) [26] It, thus behoves this Court not to fold its arms and shut its ears just because through the industry of the Appellant voluminous documents are presented to the Court. 250 [27] The Court bears in mind that the action is for goods sold and delivered with accounts rendered on a regular basis since 25 September 2014 and which ran for five years until September 2019. 255 [28] It was clear that the Appellant never disputed taking delivery of all the goods supplied by the Respondent. [29] Despite the diligence of the Appellant in exhibiting the voluminous documents, upon the invitation of the Court to the learned counsel for the 260 Appellant to identify the incentives said to have been earned but not given, the learned counsel sought to point out one example but this was credibly rebutted by the learned counsel for the Respondent, as the incentive said to be earned if payment was made within 30 days was shown to be paid beyond 30 days. 265 [30] Learned counsel for the Respondent pointed out that there were no contemporaneous documents seeking to claim any incentives not paid. I agree with the Respondent that the failure to do so coupled with the failure to reply to the two letters of demand dated 14 October 2019 (Enclosure 4, 270 p182) and another dated 26 December 2019 would lead to the logical 9 inference that there is nothing to dispute. The appellant’s reply came only some nine months later after the first letter of demand with the caption “1st Reminder” followed by the second reminder issued two months later and this reply from the Appellant’s solicitors dated 14 July 2020 (Enclosure 7, 275 p 837) was only raised in response to a pre-action letter taken out by the solicitors for the Respondent dated 25 June 2020 (Enclosure 4, p 185). [31] The following excerpts of the judgment of the Court of Appeal in David Wong Hon Leong v. Noorazman Adnan [1995] 4 CLJ 155; [1995] 3 MLJ 280 283 are particularly pertinent to the facts of this case: “During argument, we registered our surprise at the learned Judge's reluctance to enter judgment for this sum of RM100,000. After all, the appellant had failed to respond to the letter of 17 December. If there 285 had never been an agreement as alleged, it is reasonable to expect a prompt and vigorous denial. But, as we have pointed out, there was no response whatsoever from the appellant. In this context, we recall to mind the following passage in the judgment of 290 Edgar Joseph Jr. J in Tan Cheng Hock v. Chan Thean Soo [1986] 1 LNS 42; [1987] 2 MLJ 479-487: In Wiedemann v Walpole [1891] 2 Q.B. 534, 537 an action for breach of promise of marriage, it was held, that the mere fact that the defendant 295 did not answer letters written to him by the plaintiff in which she stated that he had promised to marry her, was no evidence corroborating the plaintiff's testimony in support of such promise. Lord Esher M.R., in his judgment, remarked, -‘Here, we have only to see 300 whether the mere fact of not answering the letters, with nothing else for 10 us to consider is any evidence in corroboration of the promise'. (Emphasis supplied.) Earlier, in his judgment, he said, 'Now there are cases – business and mercantile cases in which the courts have taken notice that, in the ordinary course of business, if one man of business 305 states in a letter to another that he has agreed to do certain things, the person who receives that letter must answer it if he means to dispute the fact that he did so agree. …”. (Emphasis added) 310 [32] In the circumstances, to borrow the words of His Lordship, Mohd. Azmi SCJ in Bank Negara Malaysia v. Mohd Ismail Ali Johor & Ors (supra), I find the belated assertions, denial or disputes sought to be raised by the Appellant to be equivocal or lacking in precision and was inherently improbable in itself and it was my duty to reject such assertions or denial, 315 thereby rendering the issue as not triable. [33] In the upshot, I found no merits in the appeal by the Appellant and had it dismissed with costs. After hearing the parties on the issue of quantum of costs to be awarded, with the Respondent seeking costs of RM5,000.00 320 and the Appellant offering RM4,000.00, I had awarded costs of RM5,000.00 subject to allocatur, to the Respondent to be paid by the Appellant. 325 330 11 Dated: 13 January 2022 ( SU TIANG JOO ) 335 Judicial Commissioner High Court in Malaya Ipoh, Perak 340 For Appellant : Syakira binti Abdul Khair [Messrs WY Chan & Roy] For Respondent : Remyzen bin Moksin (together with Premjit Singh S/O Amrjit Singh) [Messrs Prem & Associates] 345 350 [Notice: This Grounds of Decision is subject to official editorial revision] 12 355 Headnotes Contract – goods sold and delivered – running accounts for 5 years – failure to challenge accounts – failure to respond to demands for payments – summary judgment ordered 13 360 14 15