The court affirmed that Letters of Undertaking create binding obligations, and summary judgment is appropriate when defendants fail to establish triable issues.

Sumathi Murugiah JC:

A. Introduction

[1] This is an application made by the Plaintiff against the Defendants jointly and severally via Enclosure No 5 of this suit for a Summary Judgment pursuant to O 14 r 1 of the Rules of Court 2012. This application is made to recover the Adjudicated Amount obtained through Adjudication Proceedings from the Defendants in reliance to the Letters of Undertaking dated 1 October 2021.

B. Brief Background

[2] On or around April 2021, Plaintiff was approached by D1, the project owner of the Project with the view of introducing Plaintiff as a sub-contractor to Titan Energy Sdn Bhd (Titan) being the main contractor to continue and complete the works for the Project. Titan issued the Works Order on 4 May 2021, thus forming a contract between the Plaintiff and Titan for a contractual sum of RM6,010,861.00. Further to that, additional works for a total sum of RM 1,366,784.26 was ordered by Titan making the contract sum to a revised sum of RM7,347,645.26.

[3] By the Letters of Undertaking, both dated 1 October 2021 (Letters of Undertaking) the Defendants each undertook to pay on behalf of Titan for any amounts owing to the Plaintiff for the Works completed for the Project as per certified by the project consultant, and to also indemnify the Plaintiff from all costs, damages and expenses suffered as a result of their breach of undertaking (Letters of Undertaking).

[4] Due to Titan's failure to pay the Plaintiff, the Plaintiff had commenced Adjudication Proceedings against Titan in compliance with among others ss 2 4 & 5 of the Construction Industry Payment and Adjudication Act 2012 (the CIPAA) and had successfully obtained an Adjudication Decision dated 8 April 2024 in its favour for which this Court had allowed for the Adjudication Decision to be enforced as an order of this Court on 1 July 2024.

[5] By letters of demand dated 22 April 2024 and 30 April 2024 from the Plaintiff's solicitors to the Defendants, the Plaintiff demanded payment of the Adjudication Award sums in accordance with the Defendants' Letters of Undertaking. However, the Defendants failed, refused and/or neglected to comply with the said demands.

[6] At the Defendants' request, the Plaintiff sent copies of the full supporting documents to the Adjudication Proceedings for the Defendants' perusal by its letter dated 10 May 2024. Due to the Defendants' refusal to pay in accordance to the Letters of Undertaking, the Plaintiff filed this present action and had filed an application via Enclosure No 5 for a Summary Judgment against the Defendants.

[7] I allowed the Plaintiffs application with costs. The Defendants being unsatisfied with my decision had filed an appeal to the Court of Appeal. As such, I furnish hereinbelow the grounds of my decision in allowing the Summary Judgment.

C. The Law On Summary Judgment

[8] Order 14 r 1 of the Rules of Court 2012 (O 14 r 1):

"(1) 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 to a claim included in the writ, or to a particular part of such a claim, or has 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. "

[9] In order to establish a prima facie case, the Plaintiff has to satisfy the requirement under O 14 r 1 as set out by the Supreme Court in the case of National Company for Foreign Trade v. Kayu Raya Sdn Bhd [1984] 1 MLRA 190; 1984 MarsdenLR 58 ; .

"... the preliminary requirements are:

(i) The defendant must have entered an appearance;

(ii) The statement of claim must have been served on the defendant; and

(iii) The affidavit in support of the application must comply with the requirements of r 2 O 14.

... if the plaintiff fails to satisfy either these considerations, the summons may be dismissed. If however, these considerations a