Summary judgment requires clear acknowledgment of debt; 'without prejudice' communications are inadmissible as proof of indebtedness.

JUDGMENT

(Enclosure 1)

Azizan Md Arshad JC:

Introduction

[1] This is an appeal against the decision of the Learned Sessions Court Judge which was given on 23 June 2021, whereby the Learned Sessions Court Judge has allowed the Plaintiff to record summary judgment against the Defendant as per prayer 1 in the Notice of Application (Enclosure 5 in the Court below).

[2] On 29th of March 2022, this Court had allowed the appeal with costs and set aside the summary judgment dated 23 June 2021. The Plaintiff had appealed to the Court of Appeal. These are my grounds of judgment.

By Way Of-Rehearing

[3] In the case of Chan Lai Yoke & Anor v. ESS Engineering Sdn Bhd, set as follows:

"Order 55 r 2 of the Rules of 2012 provides that all appeals to the High Court shall be by way of re-hearing. The White Book on the Malaysian Civil Procedure 2021 Volume 1, p 812 at para 55/2/1 states as follows:

In a re-hearing, a judge is not tasked to consider whether the lower Court judge had exercised his discretion correctly or had properly considered the relevant material. He would consider the case as if it came before him for the first time."

In this judgment, parties are referred as they were at Sessions Court.

Law On Summary Judgment

[4] The guideline on law for summary judgment under O 14 of ROC 2012 can been seen in the case of National Company For Foreign Trade v. Kayu Raya Sdn Bhd , 1984 MarsdenLR 58 the Federal Court has stated as follows:

"We think it appropriate to remind ourselves once again that in every application under O 14, the first considerations are (a) 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.

... 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. This burden then shifts to the defendant to satisfy the Court why judgment should not be given against him." (see Cempaka Finance Bhd v. Ho Lai Ying & Anor, 2005 MarsdenLR 191 )

[5] In Yeohata Machineries Sdn Bhd & Anor v. Coil Master Sdn Bhd & Ors, [2015] 6 MLJ 810, his Lordship Court of Appeal Justice Vernon Ong (as His Lordship then was held):

"[177 In law, the party who desires the Court to give judgment in its favour as to any legal right or liability bears the burden of proof (s 101(1) of the Evidence Act 1950). The burden of proof on that party is twofold: (i) the burden of establishing a case; and (ii) the burden of introducing evidence. The burden of proof lies on the party throughout the trial. The standard of proof required of the plaintiff is on the balance of probabilities. The evidential burden of proof is only shifted to the other party once that party has discharged its burden of proof. If that party fails to discharge the original burden of proof, then the adverse party does not need to adduce any evidence..."

[6] In the Federal Court case of International Times & Ors v. Leong Ho Yuen, [1980] 2 MLJ 86 also stated as follows:

"... According to ss 102 and 103 of the Evidence Act if the party with whom this onus lies whether initially or subsequently as a result of its shifting does not give any or further evidence or gives evidence which is not sufficient, such party must fail."

It is also trite law that in a claim for summary judgment, the burden is on the Defendant to raise triable issues though a complete defence need not be shown. The determination of whether an issue is triable or not must necessarily depend on the facts or the law arising in each case as disclosed in the affidavit evidence before the Court