WONG SUI KUI @ WONG NYUK MOI (No. K/P: 550422-12-5388) (sebagai pemilik tunggal dan berniaga di bawah nama EDO ICHI JAPANESE RESTAURANT) (No. Pendaftaran: R4886/2005) SUMI ICHI TRADING SDN BHD (No. Syarikat: 1049611-D)

DALAM MAHKAMAH TINGGI MALAYA DI KUALA LUMPUR RAYUAN SIVIL NO.: WA-12ANCC-43-06/2020 ANTARA WONG SUI KUI @ WONG NYUK MOI (No. K/P: 550422-12-5388) (sebagai pemilik tunggal dan berniaga di bawah nama EDO ICHI JAPANESE RESTAURANT) (No. Pendaftaran: R4886/2005) … PERAYU DAN SUMI ICHI TRADING SDN BHD (No. Syarikat: 1049611-D) … RESPONDEN (DI DENGAR BERSAMA) DALAM MAHKAMAH TINGGI MALAYA DI KUALA LUMPUR RAYUAN SIVIL NO.: WA-12ANCC-49-06/2020 ANTARA WONG SUI KUI @ WONG NYUK MOI (NO. K/P: 550422-12-5388) (sebagai pemilik tunggal dan berniaga di bawah nama HANA JAPANESE RESTAURANT KOTA KINABALU) (No. Lesen Perniagaan: 015011266) … PERAYU DAN SUMI ICHI TRADING SDN BHD (No. Syarikat: 1049611-D) … RESPONDEN J U DGM E NT [1] This judgment is in respect of the Appellant’s (Defendant in the Sessions Court) appeals against two separate decisions of the Sessions Court: Page 1 of 25 i) on 27.5.2020 allowing Respondent’s (Plaintiff in the Session Court) application for summary judgment under Order 14 Rule 1 of the Rules of Court, 2012 against the Respondent (“Respondent’s O.14 Application”) (“Appeal 43”); and ii) on 4.6.2020 allowing Respondent’s (Plaintiff in the Session Court) application for summary judgment under Order 14 Rule 1 of the Rules of Court, 2012 against the Respondent (“Appeal 49”). (collectively referred to as “the Appeals”) [2] The parties in Appeal 43 and Appeal 49 are the same and the subject matter of the Respondent’s claim in both Appeals are for goods sold and delivered. The main difference in Respondent’s claim in Appeal 43 and Appeal 49 is that it involves different batches of goods that were supplied to the Appellant and the locality of the delivery. The type of goods is the same. [3] As mentioned in my opening, the Appeals are in respect of two separate decisions of two different learned Sessions Court Judges, Puan Norakhmarbinti Mohd Sani and Puan Rosbiahanin Binti Arifin, both of whom arrived at the same conclusion. [4] The Appellant’s defence in both the Appeals are substantially the same. [5] Given the similarity of the facts and issues of both Appeal I had directed for them to be heard together. Page 2 of 25 A] SALIENT BACKGROUND FACTS [6] The background facts of both Appeals are generally not in dispute. [7] Appellant is the sole proprietor and owner of two businesses, each business operates a Japanese restaurant as follows: i) One called Edo Ichi Japanese Restaurant in Penang (Appeal 43) (“Edo Ichi Restaurant”); and ii) the other called Hana Japanese Respondent in Kota Kinabalu (Appeal 49) (“Hana Restaurant”) (collectively referred to as “Appellant’s Restaurants”). [8] The Appellant ordered the raw material for the Japanese food for the Appellant’s Restaurants from the Respondent (“Raw Materials”). [9] From 1.9.2016 to 23.12.2017, based on the Appellant orders the Appellant supplied the Raw Materials to the Appellant at the Appellant’s Restaurants. [10] All the Respondent’s invoices carry a 60 days payment term. [11] Except for the Raw Materials being the subject matter of the Appeals, the Appellant has paid the Respondent for all Raw Materials that were supplied up to around March 2017. [12] The Appellant did not pay the Respondent for the Raw Materials that were supplied from 4.1.2017 to 13.12.2017. Page 3 of 25 [13] There is not dispute as to the supply and delivery of the Raw Materials including the delivery orders and invoices issued. [14] Except for the difference in the business entities owned by the Appellant, the above facts are common to both Appeals and are not dispute. B] THE APPELLANT’S DEFENCE [15] The Appellant’s has essentially one defence as pleaded in his Defence that is that the Respondent has been overcharging the Appellant for the Raw Materials that the Respondent has supplied being the subject matter of the Respondent’s claims in both Appeals. Thus, the Respondent is estopped from claiming for the Raw Materials supplied. [16] The defence is based on the following facts alleged by the Appellant: i) On or about 27.1.2018 an oral agreement (“Alleged Oral Agreement”) was entered between the Respondent and the Appellant’s representative that the Raw Materials supplied by the Respondent shall be discounted. ii) It is for this reason the Appellant had appointed the Respondent as its exclusive supplier. iii) The Appellant’s representative is one Chong Chee Lam @ Liew Chee Lam (“Chong Chee Lam”) who is also a director and major shareholder of the Respondent. [17] The Appellant further avers through the Afidavit Jawapan Defendan No. 1 and No. 2 (in both Appeals) that: Page 4 of 25 i) The Respondent was incorporated on 12.6.2013 as a joint venture for the purpose of providing exclusive supply of raw materials or Japanese products to the Appellant’s Restaurants; ii) Chong Chee Lam is the Appellant authorised representative and is authorised by the Appellant to manage the daily affairs and operations of the Appellant’s Restaurants. iii) The Respondent is the exclusive supplier of the Raw Materials to the Appellant’s Restaurant and the Respondent shall not supply to any third party other the Appellant and Chong Chee Lam. iv) In consideration of appointing the Respondent as the Appellant’s exclusive supplier, the Respondent agreed to fix the price of the Raw Materials sold to the Appellant in that it shall not exceed 20% of the profit margin of the cost price of the Raw Material. In other words, the Respondent shall not sell the Raw Materials above 20% of the cost price for which the Respondent obtained the Raw Materials (“Agreed Profit Margin”). v) At all material times Chong Chee Lam has personal knowledge of the business transactions between the Respondent and the Appellant’s Restaurants. vi) The Respondent had beached the Oral Agreement by charging the Appellant above the 20% of the cost price of the Raw Materials (“Overcharging”). vii) The Oral Agreement was reconfirmed by the parties in 2 meetings held on 18.1.2018 (“First Meeting”) and 29.3.2019 (“Second Meeting”) between the representatives of the Appellant and the Respondent (collectively referred to as “the said Meetings”). Page 5 of 25 viii) At the said Meetings, the Respondent admitted there are discrepancies in the invoices it issued and that they were not accurate. Nevertheless, the Respondent proceeded to commence proceedings against the Appellant. [18] Therefore, the summary of the Appellant’s defence is that the contract for the supply of the Raw Materials by the Respondent to the Appellant is subject to the terms Alleged Oral Agreement in that the Respondent is to sell the Raw Materials to the Appellant at 20% of its cost price. [19] The above defence is common to both Appeals. C] WHETHER THERE IS A TRIABLE ISSUE [20] Learned counsel for the Appellant, Mr Chen Yun Jin, raised 3 issues which he argues are triable issues and they are as follows: i) The existence of the Alleged Oral Agreement on the Agreed Profit Margin; ii) The Meetings between the Respondent and the Appellant where the Alleged Oral Agreement was reaffirmed and the Overcharging was admitted. iii) The amount claimed by the Respondent is disputed because of the Overcharging stated in (ii) above which is in breach of the Alleged Oral Agreement. [21] All the above 3 issues can be dealt with together as they all essentially pertain to the Alleged Oral Agreement, its existence and breach thereof. Page 6 of 25 i) ISSUE OF EXISTENCE OF THE ALLEGED ORAL AGREEMENT [22] The crux of learned counsel for the Appellant’s argument on this issue is that the Alleged Oral Agreement can only be proved by was of a trial. [23] I am of the respectful view that a mere allegation of an oral agreement is not sufficient to raise a triable. There must be some basis to support the Appellant’s contention. [24] In other words, a defendant in a summary judgment application cannot just raise issues such as fraud, forgery, libel or oral agreements (not supported by any document) or otherwise issues which cannot be determined by affidavit evidence alone and for which a trial is required. [25] It would not be difficult for a defendant to raise these kinds of issues in hope that it will render the matter unsuitable to be determined by way of a summary judgment application. [26] The following passage from the Supreme Court case of Bank Negara Malaysia v. Mohd Ismail Ali Johor & Ors. [1992] 1 CLJ (Rep) 14 is instructive on this point: “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 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.” (own emphasis added) Page 7 of 25 [27] Bearing in mind the above passage from Bank Negara Malaysia (supra), I will now examine the Appellant’s assertions on the Alleged Oral Agreement as against the undisputed facts. No Document to Even Suggest the Existence of the Alleged Oral Agreement [28] There are no documents at all such as correspondences, emails or even Whatsapp messages, which seem to be more commonly used now as evidence, have been exhibited to show that the Alleged Oral Agreement exists. [29] All the key documents exhibited in both Appeals being the usual documents which form the contract for cases involving goods sold and delivered and as proof of the said contract (Caltex Oil Malaysia Ltd v Classic Best Sdn Bhd & Ors [2007] 4 MLJ 772; Wong Cheng Yong & Anor v. Confast Hardware & Fasterners Sdn Bhd [2018] MLRHU 1015), namely, the Statement of Account, Invoices and Delivery Orders do not mention nor even suggest the existence of Alleged Oral Agreement or the terms thereunder. [30] Despite the Appellant’s allegation that she subsequently discovered the Overcharging, the Appellant, nevertheless, continued to order and receive the Raw Material and never rejected them. Alleged Discovery of the Overcharging [31] In paragraph 13(a) of the Appellant’s Written Submissions (Enclosure 25 in Appeal 43) and paragraph 12(a) of the Appellant’s Written Submissions (Enclosure 19 in Appeal 49), leaned counsel for the Appellant submitted, inter alia, as follows: Page 8 of 25 “On or around August 2017, some of the Appellant and / or Appellant’s Representative’s restaurant chains informed the Appellant’s Representative that there appeared to be high charges for the raw materials and Japanese products supplied by the Respondent”. (own emphasis added) [32] I am unable to find anywhere in any of the Appellant’s Affidavits or the Affidavits affirmed on the Appellant’s behalf (“Appellant’s Affidavits”) of the above statement. The Appellant never averred when she discovered the Overcharging or how she discovered it. The Appellant merely said the Respondent refused to honour the Alleged Oral Agreement and overcharged her. The relevant averments made by the Appellant and Chong Chee Lam on the Appellant’s behalf are as follows: Paragraph 7 of Afidavit Jawapan Defendan No. (1) in Appeal 43 and paragraph 12 of Afidavit Jawapan Defendan No. (1) in Appeal 49 “Walau bagaimanapun Plaintif telah enggan, gagal dan/atau abai menepati persetujuan tersebut dan telah secara niat jahat mengenakan harga secara berperingkat dan tanpa pengetahuan Defendan lebih daripada 20% dari harga kos seperti yang ditetapkan. Oleh sedemikian, amaun dalam inbois-inbois yang dikeluarkan oleh Plaintif adalah tidak tepat.” Paragraph 7(c) and 10 of Afidavit Jawapan Defendan No. (2) in Appeal 43 and paragraph 8(c) and 11 of Afidavit Jawapan Defendan No. (2) in Appeal 49 “Namun demikian, Plaintif telah menyalahgunakan kepercayaan tersebut dan / atau secara salahnya mencaj barangan mentah secara berlebihan kepada rangkaian restoran Defendan. Tambahan pula, Plaintif telah gagai, abai dan / atau enggan mengekshibitkan pesanan pembelian dan sebutharga bagi Page 9 of 25 bekalan barangan mentah yang kononnya telah dihantar dan / atau dibekalkan kepada EIJ Restaurant.” “Sebagai jawapan kepada perenggan 12 Afidavit Sokongan Plaintif, saya menyatakan bahawa saya telah menyedari dan sangsi bahawa bekalan yang dibekalkan oleh syarikat Plaintif telah dicaj melebihi margin keuntungan yang dipersetujui. Oleh demikian, Defendan telah memohon supaya suatu audit dijalankan untuk membetulkan percanggahan tersebut dan untuk memastikan bahawa sebarang inbois terdakwa yang dikeluarkan oleh Plaintif kepada Defendan adalah benar dan sah. Saya menafikan kandungan perenggan 12 secara keseluruhannya.” (own emphasis added) [33] Therefore, the submissions of learned counsel for the Appellant on when and how the Appellant discovered the Overcharging reproduced in paragraph 31 above are unsupported by the averments made by the Appellant or on her behalf. [34] In this regard it was held by the Court of Appeal in Ribaru Bina Sdn Bhd & Anor v. Bakti Kausar Development Sdn Bhd & Anor [2007] 1 CLJ 552 as follows: “[5] To raise triable issues by way of submission on a point not raised in a defence or an affidavit would not, in our judgment, meet the requirements of procedural fairness which is the essence of any litigation.” (own emphasis added) [35] In fact, even if learned counsel’s for the Appellant’s above submissions are taken at face value, it is vague. It cannot be determined as to what is meant by the words, “some of the Appellant and/or Appellant’s Representative’s restaurant chains informed the Appellant’s Representative”. Who do “restaurant chains” refer to? Are they individuals and if so who? Page 10 of 25 [36] Strangely, Chong Chee Lam whom is referred to as the Appellant’s Representative only said, “saya telah menyedari dan sangsi”. It is clear that what he said is that he “realised” (menyedari) and not that he was informed. Further, he “suspected” (sangsi in the broader context of the word) which denotes that he does not know for certain if there was Overcharging. This part would be consistent with learned counsel for the Appellant’s use of the words, “there appeared to be high charges for the raw materials” in that it is suspected and not known for certain. [37] What all this ultimately means is that the Appellant herself is not sure whether there is Overcharging. This then raises the question of the validity of her allegation. [38] This may also explain why there is not a single letter, email or any other form of correspondence from the Appellant to dispute or raise this issue of Overcharging. [39] The Appellant’s failure to raise any objection or dispute regarding the Overcharging goes against the Appellant. In Chow Sow Yoon & Anor v. Universal Industrial Gas Sdn Bhd and another appeal [2017] MLJU 2104, also a case on goods sold and delivered, it was held: “Premised on the aforesaid it is my considered opinion that based on the facts and evidence adduced, the various issues raised by the Defendants are not bona fide triable issues. Most of the issues raised are not pleaded and/or not raised by the Defendants contemporaneously or immediately upon the occurrence of the various issues and in accordance with the terms of the agreement that bind their commercial relationship in the supply and delivery of the Goods. In this respect I am compelled to agree with the Plaintiff that the issues raised are afterthoughts. I am also of the view that the Plaintiff has provided evidence which has adequately ruled out the need for a full trial. (own emphasis added) Page 11 of 25 [40] Further, the Court of Appeal in David Wong Hon Leong v. Noorazman Adnan [1995] 3 MLJ 283 held: “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 responded to the letter of 17 December. If there 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…” (own emphasis added) [41] Therefore, applying the principles in Chow Sow Yoon (supra) and David Wong (supra), the Appellant ought to have raised her objection to the Respondent’s claim/invoices upon discovering or even suspecting of the Overcharging, either immediately or soon thereafter. This is expected of any reasonable business person. The Appellant is an experienced businesswoman with a chain of Japanese restaurants. Therefore, there is no excuse for the Appellant’s silence or lack of response in particular where the claim against her is substantial. Default in Payment Before the Alleged Discovery of Overcharging & Continuous Requests for the Supply of the Raw Materials [42] The Appellant had defaulted in payment for the Raw Materials sometime in March 2017. Even if the date August 2017 is accepted as the date the Appellant allegedly discovered the Overcharging, there is no excuse for the Appellant to have failed to pay for the Raw Materials from March 2017. Page 12 of 25 [43] This supports the Respondent’s contention that the Alleged Oral Agreement and Overcharging are an afterthought. I am inclined to agree with the Respondent on this given the overall circumstances of these Appeals. [44] Further, if the Appellant truly believed there was Overcharging, it does not explain why the Appellant has todate failed to claim for the amounts she allegedly overpaid the Respondent. [45] It must also be borne in mind that the Appellant does not dispute her responsibility to pay for the Raw Materials supplied but alleged that the amount is more than what was agreed in the Alleged Oral Agreement. Therefore, even if the Appellant’s argument is to be accepted in that the Raw Materials are said to be 20% higher than what the Appellant needs to pay then this only means the principal amounts claimed by the Respondent are to be reduced by 20%, at best. The Appellant still needs to pay for the Raw Materials which have been supplied. That has not changed. [46] The Appellant also continued to request for the supply of Raw Materials after the alleged discovery of the Overcharging in August 2017. It was the Respondent who took it upon itself to stop supplying the Appellant with the Raw Materials in December 2017. [47] The above matters do not support the Appellant’s contention of the existence of the Alleged Oral Agreement or the Overcharging. [48] This then which brings me to the next issue that is the said Meetings. Page 13 of 25 ii) ISSUE OF THE SAID MEETINGS [49] The Appellant sought to show that the said Meetings are proof of the existence of the Alleged Oral Agreement. [50] The said Meetings are not denied and it is not in dispute the actual date of the Second Meeting was changed to 29.3.2019. What was exhibited in respect of the said Meetings are 2 Notices dated 18.1.2018 and 11.3.2019 respectively, both calling for meetings of the Board of Directors of the Respondent company. [51] The Agenda stated in the 2 Notices are identical and are as follows: “1) To discuss the financial issues of the Company. 2) To transact any other business of which due notice shall be given.” [52] It is clear that the Notices do not mention anything about the Alleged Oral Agreement or the Overcharging. There were also no minutes of meeting taken for both the said Meetings. The Notices by themselves do not support the existence of the Alleged Oral Agreement or the Overcharging. [53] Chong Chee Lam is said to have only attended the Second Meeting but not the first. [54] For Appeal 49 only, a third affidavit was affirmed on behalf of the Appellant by one Lin Ming Oi (“Li Ming”) (Afidavit Jawapan Defendan No. 3), who is the daughter of the Appellant whom attended both the said Meetings. Li Ming admitted that the Respondent’s company Page 14 of 25 secretary was not in attendance at both the said Meetings and therefore no minutes were taken. Hence, she took it upon herself to “secretly” voice record the First Meeting (“Voice Recording”). [55] Li Ming averred that since the attendees of the First Meeting spoke in Chinese, she then translated and transcribed the Voice Recording (“Alleged Transcribed Minutes”). This Alleged Transcribed Minutes were exhibited by Li Min in Afidavit Jawapan Defendan No. 3 in Appeal 49. [56] The Respondent has disputed the Alleged Transcribed Minutes and its contents. The Respondent further challenged the authenticity and veracity of the Alleged Transcribed Minutes. [57] Even if the Alleged Transcribed Minutes can be admitted as evidence, having perused the same, it is evident that: i) There is reference to only 2 people who spoke at the First Meeting, one is stated as “Michelle” and the other “Male”. The identities of these 2 people are unknown and neither did Li Ming in the Afidavit Jawapan Defendan No. 3 provide explanation on this; ii) There is no statement contained anywhere in the Alleged Transcribed Minutes that refer to the Alleged Oral Agreement or the Overcharging. iii) The manner and context of the conversation in the Alleged Transcribed Minutes are informal. Page 15 of 25 [58] Interestingly, the Appellant did not mention nor exhibit the Alleged Transcribed Minutes in the Appellant’s two earlier affidavits filed in opposing the Respondent’s summary judgment application in respect of Appeal 49. It was only after filing the Appellant’s two affidavits for Appeal 49 did the Appellant consider it necessary to have Afidavit Jawapan Defendan No. 3 affirmed by Li Ming where the Voice Recording and Alleged Transcribed Minutes are mentioned for the first time. [59] Also, I must highlight again that the Voice Recording and Alleged Transcribed Minutes were never raised in Appeal 43. [60] Based on the above, the contents of the Alleged Transcribed Minutes, even if it is admitted, do not support the Appellant’s assertion of the Alleged Oral Agreement and the Overcharging. [61] Needless to say, the Respondent vehemently denied the Alleged Transcribed Minutes. It was further argued that the Voice Recording, even if it exists, would not be admissible given that it was wrongly and unlawfully recorded without the knowledge or consent of the Respondent. I would agree with the Respondent on this issue. [62] This is in addition to the other matters which have been raised above including the absence of any document or correspondence to support the existence of the Alleged Oral Agreement. [63] I now come to the issue of Chong Chee Lam and his involvement in these two cases (Appeals) as the Appellant’s Representative. Page 16 of 25 iii) CHONG CHEE LAM AND HIS INVOLVEMENT [64] Chong Chee Lam’s position in these Appeals is most unusual to say the least, and warrants a section of this judgment to deal with him. For brevity, I will reiterate Chong Chee Lam’s relationship with the Appellant and Respondent as follows: i) Chong Chee Lam is a director and major shareholder of the Respondent. ii) According to the Appellant, Chong Chee Lam is also the authorised representative of the Appellant, otherwise referred to by the Appellant as the “Appellant’s Representative” in both actions. Chong Chee Lam manages the daily affairs and operations of the Appellant’s Restaurants. [65] Chong Chee Lam has affirmed one affidavit each on behalf of the Appellant for each Appeal and it is evident that the Appellant relies heavily on Chong Chee Lam’s averments in her attempt to raise a triable. This is due to his position as a director and shareholder of the Respondent. [66] Chong Chee Lam basically confirms the existence of the Alleged Oral Agreement and Overcharging. [67] This then resulted in the Respondent taking serious objection to Chong Chee Lam’s averments, for acting in conflict with the Respondent. The Respondent reserved its right to take action against the Chong Chee Lam personally by making a police report. Page 17 of 25 [68] It cannot be denied that prima facie Chong Chee Lam’s position as a director of the Respondent as well as the Appellant’s Representative puts him in a position of conflict of interest with the Respondent (and arguably the Appellant also because as a director of the Respondent he must act in the best interest of the Respondent which may not necessarily be in the best interest of the Appellant). It is ironic and most unusual. [69] Despite the Appellant’s reliance on Chong Chee Lam I am unable to see how it helps the Appellant. On the contrary and with respect, I find that the opposite is true in that it works to the determined of the Appellant. The reason I arrived at this conclusion is based on the following averments made by the Appellant in the both the Afidavit Jawapan Defendan No. 1 in both Appeals (paragraphs 14 and 13 respectively): “Saya menyatakan bahawa pada semua masa material CCL mempunyai pengetahuan peribadi transaksi-transaksi perniagaan di antara Plaintif dan EIJ Restaurant.” “Saya menyatakan bahawa pada semua masa material CCL mempunyai pengetahuan peribadi transaksi-transaksi perniagaan di antara Plaintif dan Hana Japanese Restaurant.” (own emphasis added) [70] Based on the above averments, according to the Appellant herself Chong Chee Lam has, at all material times, personal knowledge of the business transactions between the Respondent and the Appellant's Restaurants which restaurants are the two business entities. [71] Therefore, in other words, what the Appellant sought to show was that Chong Chee Lam was the Appellant’s eyes and ears in the Respondent company. Page 18 of 25 [72] Thus, in accepting the Appellant’s averment, the following inevitable conclusion are drawn: i) Chong Chee Lam ought to have known of the Overcharging when it occurred. In his Afidavit Jawapan Defendan No. 2 he said he only “realised” (menyedari) and “suspected” (sangsi) of the Overcharging arguably after the First Meeting. This is bearing in mind that Chong Chee Lam is responsible for the day-to-day running of the Appellant's Restaurants as well as running the Respondent at the same time. ii) Chong Chee Lam, despite the unique position he is in, as both the Appellant’s Representative and the Respondent’s director and major shareholder was not able produce a single document to support the existence of the Alleged Oral Agreement or the Overcharging. As a director of the Respondent Chong Chee Lam would have excess to the Respondent’s documents. iii) In fact, Chong Chee Lam averred that he was asked by the Appellant to conduct an audit to rectify the Overcharging and ensure the invoices issued by the Respondent are correct and valid (paragraph 10 and 11 of the Afidavit Jawapan Defendan No. 2 in Appeal 43 and 49 respectively). However, he failed to do this and based on the Respondent’s Affidavit In Reply, Chong Chee Lam never requested for an audit to be conducted. iv) Chong Chee Lam, as a director of the Respondent, could easily table a motion for a resolution to be passed by the Respondent’s Board of Directors regarding the Overcharging or at the very least to discuss the same. It was within his power to do so, however, this was never done nor even raised by him. Page 19 of 25 v) Chong Chee Lam has been a director since the Respondent was incorporated and said that the Respondent was established for the purpose of supplying the Raw Materials to the Appellant as part of joint venture. As the Appellant’s Representative, it would be incumbent upon him to protect and watch over the Appellant’s interest so there is no reason for the Overcharging to occur, if at all the Alleged Oral Agreement exists. vi) As a majority shareholder Chong Chee Lam would have benefited from the profits earned by the Respondent but he is willingly causing the income of the Respondent to be lowered or for the Respondent to incur losses by siding with the Appellant on the Alleged Oral Agreement and Overcharging. This would in turn have the effect of lowering or even extinguishing the dividends Chong Chee Lam would be entitled to as the Respondent’s major shareholder. This makes no sense and is akin to shooting himself in the foot. Thus, Chong Chee Lam’s motives are seriously in question. [73] Learned counsel for the Appellant in paragraph 9(c) of his Written Submissions for both Appeals submitted that it was agreed by the parties that the Respondent would be managed by the other directors and not Chong Chee Lam. However, again, I am unable to find this averment in any affidavit filed by or on behalf of the Appellant. Chong Chee Lam himself made no such averment. [74] I again refer to the Court of Appeal case of Ribaru Bina (supra) against raising a point in submission which was not raised in a defence or an affidavit. This is not only procedurally unfair as stated in Ribaru Bina (supra) but is also not ethically right. Page 20 of 25 [75] Therefore, based on the above, Chong Chee Lam’s involvement must be construed against the Appellant rather than in her favour or supporting her. D] CONCLUSION [76] There are too many inconsistencies and discrepancies in the Appellant’s Defence as can be seen above. Another glaring discrepancy is the date of the Alleged Oral Agreement that is pleaded to be on or about 27.1.2018 in the Defence. That cannot be right as in December 2017, the Respondent had stopped supplying the Raw Materials to the Appellant. The Alleged Oral Agreement cannot be said to have been entered after the contract ended. Therefore, either the Appellant made a typographical error in her Defence or the Alleged Oral Agreement never existed. [77] Further, there is no mention of the date when the Alleged Oral Agreement was entered in all of the Appellant’s Affidavits, only reference to the said Meetings instead were made. Coincidentally, the date of the First Meeting is also 27.1.2018 and if the Appellant is referring to this date as the date of the Alleged Oral Agreement then the Appellant’s Defence is truly flawed. [78] For completeness, on the issue of the Alleged Oral Agreement and the Respondent being appointed as the Appellant’s exclusive supplier, the Respondent has denied the Alleged Oral Agreement and that it was established solely to supply the Raw Materials to the Appellant’s Restaurants. The Respondent averred that it also supplies to other Japanese restaurants such as one that is called Azuma Japanese Restaurant which is not owned by the Appellant. Page 21 of 25 [79] All these are additional instances of the weaknesses in the Appellant’s Defence and case. [80] The legal principles and requirements for an application for Summary Judgment under Order 14 of the Rules of Court 2012 are trite and do not need restating. [81] Nevertheless, there is a case which dealt directly with an oral agreement in a summary judgment application and that is the case of Voo Min En & Ors v. Leong Chung Fatt [1982] 1 MLRA 548 where the Federal Court held: “That being the case, it is not enough for the respondent in answer to the appellants' application to sign final judgment, to raise an issue, or any issue. He must, however, raise such issue as would require a trial in order to determine it. In other words, the issue raised must be an arguable issue. But where the issue raised is irrelevant and ineffective, or to use the words of Lord Greene, M.R. in Cow v Casey [1949] 1 KB 474, 481 "when the point is understood and the court is satisfied that it is really unarguable", the appellants should be entitled to what they prayed for in the summons-in- chambers. In our view the point raised by the respondent as to the existence of an oral agreement to renew the lease of the ground floor of the demised premises in this case is really not an arguable issue as it is neither effective, nor admissible, and therefore does not constitute a triable issue. The appellants should be and are therefore allowed to sign final judgment in terms of the summons-in- chambers. (own emphasis added) [82] As the Respondent has satisfied the conditions laid down in National Company for Foreign Trade v. Kayu Raya Sdn. Bhd. [1984] 1 CLJ Rep 283, therefore the burden shifts to the Appellant to show satisfactory explanation as why summary judgment should not be Page 22 of 25 entered against her. In this regard, the Appellant has not shown satisfactory explanation or some other reason to be a trial. [83] In the circumstances, I do not find that both the learned Sessions Court Judges had fallen into error in not finding any triable issue in respect of the Respondent’s claims. In Huo Heng Oil Co (EM) Sdn Bhd v. Tang Tiew Yong [1987] 1 MLJ 139, another case on goods sold and delivered, it was held: “In an appeal of this nature where the triability of an issue depends on evidence and fact as opposed to an issue of law, the appellate court will not normally disturb the view of the lower court. But it is different if it is a matter of law. Lloyds Bank plc v Ellis-Fewster (1983) 2 All ER 424 426.” (own emphasis added) [84] For the reasons stated above I dismissed both Appeals with costs and upon hearing both counsel’s arguments on costs I allowed costs of RM4,000 for the Appeal 43 and RM4,000 for Appeal 49 in favour of the Respondent. Dated this 27th day of May, 2021 -SGD- (WAN MUHAMMAD AMIN BIN WAN YAHYA) Judicial Commissioner High Court of Malaya, Kuala Lumpur (Commercial Division, NCC 3) Page 23 of 25 COUNSEL FOR THE APPELLANT Chen Yun Jin MESSRS LAW AND PARTNERSHIP Unit 12-01, Level 12, Tower 8, Avenue 5 The Horizon Phase 2 Bangsar South No. 8, Jalan Kerinchi 59200 Kuala Lumpur. Tel: 03-92129288 Fax: 03-92129289 Email: info@law-partnership.com ; yunjinchen@law-partnership.com COUNSEL FOR THE RESPONDENT Wong Joon Wye MESSRS JW WONG & PARTNER Suite 16.02, Level 16 Menara MCA 163, Jalan Ampang 50450 Kuala Lumpur. Tel: 017-911078 Fax: 03-21816708 Email: jww.partner@gmail.com LEGISLATION CITED Order 14 Rule 1 of the Rules of Court, 2012 CASES CITED 1. Bank Negara Malaysia v. Mohd Ismail Ali Johor & Ors. [1992] 1 CLJ (Rep) 14 2. Caltex Oil Malaysia Ltd v. Classic Best Sdn Bhd & Ors [2007] 4 MLJ 772 3. Chow Sow Yoon & Anor v. Universal Industrial Gas Sdn Bhd and another appeal [2017] MLJU 2104 Page 24 of 25 4. David Wong Hon Leong v. Noorazman Adnan [1995] 3 MLJ 283 5. Huo Heng Oil Co (EM) Sdn Bhd v. Tang Tiew Yong [1987] 1 MLJ 139 6. National Company for Foreign Trade v. Kayu Raya Sdn. Bhd. [1984] 1 CLJ Rep 283 7. Ribaru Bina Sdn Bhd & Anor v. Bakti Kausar Development Sdn Bhd & Anor [2007] 1 CLJ 552 8. Voo Min En & Ors v. Leong Chung Fatt [1982] 1 MLRA 548 9. Wong Cheng Yong & Anor v. Confast Hardware & Fasterners Sdn Bhd [2018] MLRHU 1015 Page 25 of 25