The failure of the Defendants to dispute the Plaintiff's claim or engage with evidence establishes a prima facie case for ordering summary judgment, rejecting mere denials of debt.

(Encl 35)

Leonard David Shim JC:

[1] This is an application by the Plaintiff pursuant to O 14 r 1 and 2 and O 92 r 4 of the Rules of 2012 for an order that final judgment be entered against the 1st and 2nd Defendant jointly and severally (hereinafter collectively referred to as "the Defendants") for the sum of RM1,953,718.50 as at 31 October 2018 together with agreed interest at the rate of 1.5% per month on the sum of RM 1,953,718.50 from 1 November 2018 to the date of full settlement, and the cost of this suit and application be paid forthwith by the 1st and 2nd Defendants to the Plaintiff.

[2] The facts of the Plaintiff's case are as follows:

(i) The Defendants are truly and justly indebted to the Plaintiff in the sum of RM1,953,718.50 as at 31 October 2018 being the balance of the price for ready mixed concrete sold and delivered to the 1st Defendant by the Plaintiff with agreed interest at the rate of 1.5% per month.

(ii) By a Guarantee Agreement dated 8 March 2010, the 2nd Defendant guaranteed the payment of all monies due to the Plaintiff by the 1st Defendant.

(iii) The Plaintiff had through their Solicitors Messrs Y C Chang & Co ("the Plaintiff's Solicitors") by letters of demands dated 29 December 2017 demanded from the 1st and 2nd Defendants for payment for outstanding sum. However, the Defendants in breach thereof, failed, refused and/or neglected to settle the outstanding. Hence, this action and the present application were brought before this Court.

The Law On Order 14

[3] It is trite law that under O 14, the Plaintiff is only required to establish a prima facie case and thereafter the burden shifts to the Defendants to show triable issue or issues thereby disallowing summary judgment to be entered. In the Federal Court case of National Company For Foreign Trade v. Kayu Raya Sdn Bhd , 1984 MarsdenLR 58 , his Lordship Seah FCJ said this at p 301:

"We think it appropriate to remind ourselves once again that in every application under O 14 the first considerations are (1) whether the case comes within the order and (b) whether the plaintiff has satisfied the preliminary requirements for proceeding under O 14. For the purposes of an application under O 14 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 of the O 14.

It is to be observed that a case is not within O 14 (a) where no statement of claim has been served on the defendant; (b) where the indorsement on the writ includes a claim or claims outside the scope of O 14 as coming within r 1(2); (c) where the affidavit in support of the application is defective, eg in omitting to state the deponent's belief that there is no defence to the claim or part to which the application relates; (d) where the application is made in an action against the Government [O 73 r 5(1)].

If the plaintiff fails to satisfy either of these considerations, the summons may be dismissed. If however, these considerations are satisfied, the plaintiff will have established a prima facie case and he becomes entitled to judgment. The burden then shifts to the defendant to satisfy the Court why judgment should not be given against him [see O 14 r 3 and 4(1)."

[4] To satisfy the Court why judgment should not be granted, the Defendants must be able to satisfy the Court by way of affidavit evidence that they had raised triable issues. In the case of Bank Negara Malaysia v. Mohd Ismail , 1992 MarsdenLR 798 , his Lordship Mohd Azmi SCJ, held that:

"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 in an 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