SIN KEAN BOON METAL INDUTRIES SDN BHD v TRIKKON CONSTRUCTION SDN BHD

SIN KEAN BOON METAL INDUTRIES SDN BHD v TRIKKON CONSTRUCTION SDN BHD

Five weeks from appearance (two weeks after defence) was not inordinate delay and the affidavit served more than four clear days before the return date complied with O.14 r.2; however, disputed issues as to whether claimed shortfall related to additional works outside the subcontract and whether architect's certificates were conclusive raised triable issues, so summary judgment was inappropriate and the interlocutory grant of leave to sign final judgment was set aside.

Citation
SIN KEAN BOON METAL INDUTRIES SDN BHD v TRIKKON CONSTRUCTION SDN BHD
Parties
Plaintiff/respondent: Sin Kean Boon Metal Industries Sdn. Bhd.; Defendant/appellant: Trikkon Construction Sdn. Bhd.
Court
Malaysian court
Jurisdiction
Malaysia
Procedural Posture
Summary Judgment Appeal (civil) / Appeal From Senior Assistant Registrar Decision Granting Leave to Sign Final Judgment and Striking Out Counterclaim
Outcome
Appeal allowed; order giving plaintiff leave to sign final judgment set aside; summary judgment refused; matter to proceed to trial; costs awarded to appellant.
Legal Topics
Summary Judgment, Service of Affidavit, Inordinate Delay, Architect's Certificate, Variation Orders, Triable Issue, Striking Out Counterclaim
Source Language
en
Civil Procedure Contract Law Construction Law Arbitration Summary Judgment Service of Affidavit Inordinate Delay Architect's Certificate +3 more

Case Brief

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Parties

Sin Kean Boon Metal Industries Sdn. Bhd.

Plaintiff/respondent

Trikkon Construction Sdn. Bhd.

Defendant/appellant

Procedural Posture

Summary Judgment Appeal (civil) / Appeal From Senior Assistant Registrar Decision Granting Leave to Sign Final Judgment and Striking Out Counterclaim

Legal Issues

  1. 1 Whether a five-week delay in applying for summary judgment constituted inordinate delay
  2. 2 Whether affidavit in support complied with O.14 r.2 service requirements
  3. 3 Whether architect's certificates and final certificate are conclusive proof of completion

Ratio Decidendi

Five weeks from appearance (two weeks after defence) was not inordinate delay and the affidavit served more than four clear days before the return date complied with O.14 r.2; however, disputed issues as to whether claimed shortfall related to additional works outside the subcontract and whether architect's certificates were conclusive raised triable issues, so summary judgment was inappropriate and the interlocutory grant of leave to sign final judgment was set aside.

Court Disposition

Appeal allowed; order giving plaintiff leave to sign final judgment set aside; summary judgment refused; matter to proceed to trial; costs awarded to appellant.

Orders

  • Appeal allowed.
  • Order of Senior Assistant Registrar granting plaintiff leave to sign final judgment set aside.