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2021 MarsdenLR 867
HIGH COURT MALAYA KUALA LUMPUR
HIGH POINT TECHNIC SDN BHD – Appellant
Versus
THRUSTBAR RESOURCES SDN BHD – Respondent
[Suit No: WA-22NCVC-316-05-2021]
No genuine dispute existed regarding admitted liability when a defendant proposes settlement of an acknowledged debt, undermining 'without prejudice' claims.
Headnote:(A) Rules of 2012 – Order 14 and Order 18 – Summary judgment application – Plaintiff applied for summary judgment for unpaid invoices totaling RM1,934,240.30 – Defendant failed to demonstrate a triable issue – Court held that no genuine dispute existed at the time of the ‘without prejudice’ communication regarding admitted liability. (Paras 1-75)
(B) Without Prejudice Privilege – The court elucidated that mere labeling of a communication as 'without prejudice' does not grant it protection unless it is part of a genuine negotiation aimed at settlement. (Paras 13-20)
Facts of the case: The plaintiff filed for summary judgment claiming unpaid invoices after delivering goods. The defendant acknowledged receipt but argued discrepancies in a 'without prejudice' letter. The court found the defenses unsubstantiated.
Findings of Court: Court found no genuine dispute regarding the outstanding sum and permitted the summary judgment application.
Issues: Whether alleged discrepancies in invoices justify striking out Plaintiff's claim, and the applicability of 'without prejudice' privilege.
Ratio Decidendi: Court concluded that the communications labeled as 'without prejudice' did not qualify for the privilege, and the defendant's defenses were found unconvincing and not supported by evidence.
Result: Plaintiff's application for summary judgment granted in full, amounting to RM1,934,240.30.
Introduction
[1] The Plaintiff ("P") filed an application vide encl 8 ("Encl 8") for summary judgment against the Defendant ("D"). Encl 8 is made under O 14 of the Rules of 2012.
[2] D in turn filed an application vide encl 9 ("Encl 9") to strike out P's Writ of Summons and Statement of Claim ("SOC"). Or in the alternative that para 14 of the SOC be expunged. Encl 9 is made under O 18 r 19(1)(b), (c) and (d) of the Rules of 2012.
[3] I dealt with both Encl 8 and Encl 9 together. I dismissed Encl 9 and did not allow the striking out by D. Instead I allowed Encl 8 and entered summary judgment against D. Here are the grounds of my decision.
Background Facts
[4] At the request of D from time to time, P will supply to Borneo Seaoffshore Engineering Sdn Bhd("BSOE") manpower, services and goods for engineering related purposes. P has supplied to BSOE the manpower, services and goods as ordered by D (collectively "Goods"). After supplying the Goods, P has delivered invoices to D based on the agreed sums ("Invoices").
[5] P avers that D has failed to make full payment of the sums owing under the Invoices. According to P, D still owes a sum of RM1,934,240.30 ("Said Sum").
[6] It is not in dispute that:
(a) D and/or BSOE had received the Goods;
(b) D had received the Invoices;
(c) D had not raised any objections or made any complaints in relation to the Goods or the Invoices prior to the commencement of this action.
Enclosure 9 - Defendant's Striking Out Application
[7] D filed Encl 9 to strike out the Writ and SOC or para 14 of the SOC on the ground that P "pleaded and alluded to in the SOC" the purported "without prejudice communication" between P and D. Namely, a letter dated 21 January 2021 from D's solicitors to P's solicitors ("Said Letter"). The Said Letter is exhibited at Exhibit 'P-6' of P's affidavit affirmed on 11 August 2021 and filed in these proceedings.
[8] Paragraph 14 of the SOC reads:
"14. On 21 January 2021, the Defendant via its solicitors replied to Plaintiff's NOD [ie notice of demand dated 31,12.2020] where the said letter enclosed the Defendant's Statement of Account which shows that the outstanding sum overdue by the Defendant to the Plaintiff is in the sum of RM1,934,240.30 - where the said sum is consistent with the Due and Outstanding Sum."
[9] The Said Letter reads:
"Proposal of settlement to the purported demand for RM1,934,240.30
We act for Thrustbar Resources Sdn Bhd ("our client").
We refer to your letter dated 31 December 2020. Our Client has also furnished us with a Statement of Account with your client, attached ("SOA").
The SOA reflects that payments amounting to RM4,110,786.72 out of the RM6,045,027.02 main balance has been settled by our client. We are also informed by our client that due to damage to the platform in relation to our client's onwards obligations, our client has not received remuneration for services rendered and this has crippled our client's cash flow.
In view of the above, and current circumstances that requires no amplification, our client proposes to pay RM500,000.00 payable in five (5) instalments.
Please let us have your client's agreement to the same."
[10] In short, the Said Letter (together with the enclosed Statement of Account furnished by D) shows that D has admitted that the outstanding sum due and owing by D to P is the Said Sum. Which is the amount claimed by P in the instant suit.
[11] It is trite that the Court will exercise its discretionary power to strike out under O 18 r 19 of the Rules of 2012 only in a plain and obvious case or where the claim is obviously unsustainable. The Court must be satisfied that there is no reasonable cause of action or that the claim is frivolous or vexatious. (See the Supreme Court case of Bandar Builder Sdn Bhd & Ors v. United Malayan Banking Corporation Berhad, at 43; [1993] 4 CLJ 7; [1993] 2 AMR 1969).
[12] In the present case, I am satisfied that P's Writ and SOC discloses a reasonable cause of action. It is far from being a fri
