A summary judgment is appropriate where the opposing party fails to raise sufficient evidence or valid defenses against a counterclaim.

JUDGMENT

Evrol Mariette Peters JC:

Introduction

[1] This was the Fourth Defendant's application ("this Application") in enclosure 38 for summary judgment pursuant to O 14 of the Rules of 2012 ("Rules of ") for its counterclaim against the Plaintiff, for rental due in the sum of MYR37,728.40 and for recovery of a loan in the amount of MYR170,185.88.

The Background Facts

[2] The Plaintiff is an individual, whilst the First Defendant, the Chief Minister of Johor at the material time, had officiated and launched a Programme known as JohorMart ("the Programme") on 25 April 2015. The Plaintiff participated in the Programme by entering into an Operator Agreement with the Third Defendant. The Plaintiff had also, entered into a tenancy agreement with the Fourth Defendant, Majlis Amanah Rakyat ("MARA"), through a Tawaran Penyewaan dated 13 June 2016 and a Perjanijian Penyewaan dated 7 August 2016. In addition, the Fourth Defendant, via a letter ("Surat Tawaran Pembiayaan Perniagaan MARA") dated 28 September 2016, offered the Plaintiff a Bai Al Inah financing facility ("the Facility") in the amount of MYR150,000, for the purpose of the Plaintiff's participation in the Programme. The Facility was accepted by the Plaintiff.

[3] The Plaintiff's JohorMart grocery store, under the Programme, was finally opened on 1 April 2017, but due to certain challenges, she suffered losses. As a result thereof, the Plaintiff eventually issued a letter to the Perbadanan Usahawan Johor Sdn Bhd (a shareholder of the Third Defendant), to surrender the JohorMart grocery store.

[4] On 12 February 2020, the Plaintiff instituted an action against the Defendants, for damages for the failure of her business, claiming, inter alia, that the Fourth Defendant had not only misrepresented, but had failed to conduct a feasibility study of the potential risks to the business, and had wrongfully disbursed the money under the Facility to the Third Defendant. Since the Plaintiff had defaulted on the Facility and rental pursuant to the Tenancy Agreement, the Fourth Defendant filed a counterclaim, and on 11 September 2020, filed this Application, which was allowed for the following reasons.

The Applicable Law

[5] It is trite law as stated in several cases including National Company For Foreign Trade v. Kayu Raya Sdn Bhd ., 1984 MarsdenLR 58 , that the Court may order summary judgment only in plain and obvious cases.

[6] The burden is on the Plaintiff in this case, to satisfy the Court why judgment should not be given against her in the counterclaim: per George Seah FJ in National Company For Foreign Trade v. Kayu Raya Sdn Bhd ., 1984 MarsdenLR 58 [1984] 2 CLJ 220, which has been followed in a plethora of cases including Cempaka Finance Bhd v. Ho Lai Ying & Anor; [2006] 2 MLJ 685; [2006] 3 CLJ 544; [2007] 1 AMR 525.

[7] It is pertinent to note that the issue that had to be addressed was whether the Plaintiff had a triable defence to the counterclaim. 'This simply means that it is for the Plaintiff to show on merits, she has a good defence to the counterclaim, or that a difficult point of law is involved, or the dispute is as to the fact which is to be tried or any other circumstances showing reasonable grounds of a bona fide defence:' per Mohamed Dzaiddin J in Syarikat Kerjasama Serbaguna Tunas Muda Sungai Ara v. Ghazali Bin Ibrahim , 1985 MarsdenLR 792 .

Contentions, Evaluation, And Findings

Whether The Fourth Defendant Was Negligent In Ensuring The Proper Management Of The Programme

[8] The Plaintiff averred that there was a Memorandum of Understanding ("MOU") (exhibited as A2 to the Affidavit-In-Reply affirmed by the Plaintiff on 1 October 2020), and pursuant thereto, the Fourth Defendant assumed the duty and obligation to conduct a feasibility study of the potential risks to the business that the Plaintiff had embarked on.

[9] I found the Plaintif's argument untenable in view of the fact that the MOU, which was between the Plaintiff and the Third Defendant, was prepared not by