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2023 MarsdenLR 868
HIGH COURT MALAYA KUALA LUMPUR
ZHEJIANG DINGCHENG INTERNATIONAL TRADE CO LTD – Appellant
Versus
SHA ASIA MINING SDN BHD – Respondent
[Civil Suit No: WA-22NCC-507-11/2021]
The court affirmed that a party's failure to respond to correspondence can be deemed an admission, negating any triable issue in a summary judgment application.
Headnote:(A) Rules of Court 2012 - Order 14 and Order 18 - Summary judgment application by Plaintiff for USD247,000.00 and liquidated damages of USD594,000.00 due to Defendant's failure to deliver natural river sand as per sale agreement - Defendant's failure to produce requisite documents and repeated breaches of contract established. (Paras 1-73)
(B) Legal principles for summary judgment - The court must determine if the defence raises a triable issue and whether the plaintiff has satisfied the preliminary requirements for proceeding under Order 14. (Paras 30-32)
(C) Counterclaim dismissed - Defendant's claims inconsistent and unsustainable as they contradict prior acknowledgments of indebtedness. (Paras 58-68)
Facts of the case:
The Plaintiff, a company from China, entered a sale agreement with the Defendant for the purchase of 55,000 metric tons of sand, making an initial payment of USD297,000.00. The Defendant failed to deliver the sand as per the agreed schedules despite multiple extensions. The Plaintiff terminated the agreement and sought the return of the deposit along with liquidated damages.
Findings of Court:
The court found that the Defendant had breached the agreement multiple times and failed to provide the required documents, leading to the Plaintiff's entitlement to the claimed amounts.
Issues: The main issues included whether the Defendant raised a triable defence and the validity of the Counterclaim.
Ratio Decidendi: The court ruled that the Defendant's failure to respond to the Plaintiff's letters and its admissions regarding the debt negated any viable defence. The Defendant's counterclaim was deemed inconsistent and thus untenable.
Result: Plaintiff's application for summary judgment allowed; Defendant's counterclaim dismissed.
| Table of Content |
|---|
| 1. summary judgment application overview. (Para 1 , 2) |
| 2. background facts of the agreement. (Para 3 , 4 , 5 , 6 , 7 , 8 , 9 , 10 , 11 , 12 , 13 , 14 , 15 , 16) |
| 3. defendant's attempts to negotiate. (Para 17 , 18 , 19) |
| 4. termination of the agreement. (Para 20 , 21 , 22) |
| 5. plaintiff's claims and demands. (Para 23 , 24 , 25 , 26 , 27 , 28 , 29) |
| 6. defendant's defenses overview. (Para 30 , 31) |
| 7. court's observations on the defenses. (Para 32 , 33 , 34) |
| 8. court's reasoning on undisputed facts. (Para 35 , 36 , 37 , 38 , 39 , 40) |
| 9. court's view on the letter of credit. (Para 41 , 42 , 43 , 44) |
| 10. authenticity of the second variation letter. (Para 46 , 47 , 48 , 49 , 50) |
| 11. defendant's counterclaim analysis. (Para 51 , 52 , 53 , 54 , 55 , 56 , 57 , 58 , 59 , 60 , 61) |
| 12. court's decision on the counterclaim. (Para 62 , 63 , 64 , 65 , 66) |
| 13. final judgment and orders. (Para 69 , 70 , 71 , 72) |
[1] This Judgment is in respect of the Plaintiff's application to enter summary judgment against the Defendant under O 14 r 1 of the Rules of Court 2012 (" ROC ") (Enclosure 14) and the Plaintiff's application to strike out the Defendant's Counterclaim under O 18 r 19(1)(b) and (d) (Enclosure 82).
[2] Enclosure 14 was filed and disposed of first followed by encl 82 which application was filed and decided after the disposal of encl 14. Below are the reasons for my decision in respect of both encls 14 and 82, the issues of which are substantially the same.
A. The Salient Background Facts And The Plaintiff's Claim
[3] The Plaintiff is a company incorporated in China.
[4] By way of a sale and purchase agreement dated 7 November 2020 ("Agreement"), the Defendant agreed to sell and supply, and the Plaintiff agreed to purchase 55,000 metric tons of natural river sand ("Sand") at a price of USD990,000.00 ("Purchase Price"), subject to the terms contained in the Agreement. Subsequently, the Plaintiff issued a Purchase Order (No. Po: P20-043) dated 7 November 2020 for the purchase of the Sand.
[5] Pursuant to cl 8.1(a) of the Agreement, upon execution of the Agreement the Plaintiff is required to pay 30% of the Purchase Price, ie USD297,000.00 ("First Payment").
[6] The Plaintiff had made the First Payment following the execution of the Agreement.
[7] In relation to the remaining 70% of the Purchase Price ie USD693,000.00 ("Balance Purchase Price"), the Balance Purchase Price was to be made by way of an irrevocable letter of credit against presentation of the following by the Defendant (under cl 8.4 of the Agreement):
i) The Defendant's commercial invoice;
ii) Original Bills of Lading issued or endorsed to the order of the Plaintiff;
iii) The Agreement;
iv) Licensed Draft Survey;
v) Mining License;
vi) Approved Permit ("AP") or other such licenses required; and
vii) Fixture Notes.
(collectively the "Requisite Documents")
[8] Thus, the Plaintiff's obligation to pay the Balance Purchase Price will only arise after the Defendant has produced all the Requisite Documents.
[9] At all material times, the Defendant did not produce the Requisite Documents. As such, the Plaintiff's obligation to pay the Balance Purchase Price did not arise.
[10] Subsequently, the parties entered into a letter of variation dated 12 November 2020 ("First Variation Letter"). There is no dispute in respect of the First Variation Letter.
[11] Pursuant to para 5 of the First Variation Letter, parties agreed that:
i) the Defendant shall load the Sand at the loading port in Malaysia within the period from 14 November 2020 to 20 November 2020;
ii) the vessel shall depart from the loading port in Malaysia on 26 November 2020 ("First Departure Date").
[12] The First Variation Letter mainly:
i) changed the mode of payment of the Balance Purchase Price from letter of credit to telegraphic transfer; and
ii) fixed 26 November 2020 as the date of departure of the vessel from the loading port in Malaysia (not provided for in the Agreement).
[13] Notwithstanding the above, the Defen
