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2021 MarsdenLR 1667
HIGH COURT MALAYA KUALA LUMPUR
PUREMAN VENTURE SDN BHD – Appellant
Versus
KEDAH CEMENT SDN BHD & ANOTHER CASE – Respondent
[Suit Nos: WA-22NCvC-282-06/2020 & WA-22NCvC-284-06/2020]
The court affirmed that a principal's right to terminate a contract at its discretion under expressed terms is valid, and claims based on alleged unlawful termination must be dismissed if contractual provisions are followed.
Headnote:(A) Contract Law – Principles for Summary Judgment and Striking Out under Order 14 and Order 18 – A plaintiff cannot obtain summary judgment unless the defendant has no defense. Courts must consider whether issues ought to be tried. The defendant's claim for striking out was allowed. (Paras 5, 3)
(B) Clause 19.2(e) – The principal has the right to terminate the contract at its discretion. The plaintiff's claims of unlawful termination were dismissed as the contract was validly terminated. (Paras 26, 46)
Facts of the case: The plaintiff, after failing to receive timely payment for services rendered under a contract with the defendant, alleged unlawful termination by the defendant under clause 19.2(e), claiming damages. (Paras 11-16)
Findings of Court: The defendant exercised its right to terminate according to the contract’s clause, hence the plaintiff's claims for damages were unsustainable. (Paras 46-48)
Issues: The court addressed the validity of the termination under clause 19.2(e) and whether the plaintiff's claim should be struck out. (Paras 22, 26)
Ratio Decidendi: The termination was lawful as per the contract terms. The court emphasized that the express terms of the contract cannot be rewritten or ignored, adhering strictly to the agreement's provisions. (Paras 38, 46)
Result: Claims struck out with costs awarded against the plaintiff. (Para 48)
JUDGMENT
Preliminary Notation
[1] The grounds delivered in this case will also be applicable for the second suit bearing number WA-22NCvC-284-06/2020 ("Suit 284"). The parties to the second suit are Pureman Venture Sdn Bhd., the same Plaintiff in this suit and Associated Pan Malaysia Cement Sdn Bhd The facts and the Contract in that suit are similar to those appearing in this case and involve similar applications for determination. Therefore, these grounds apply to that suit with necessary modifications as they concern similar facts and similar issues of law.
Applications Before This Court - Striking Out And Summary Judgment
[2] Parties had filed the following application that was heard together as they were related to one another. The applications that were filed are as follows:-
(i) An application for summary judgment by the Plaintiff against the Defendant.
(ii) An application to strike out the writ and the statement of claim by the Defendant.
[3] Having read the Notice of Applications, the affidavits and submissions filed and hearing parties on 6 May 2021, I decided to allow the application to strike out the statement of claim against the defendant and dismiss the application for summary judgment. I find that the Defendant is entitled to terminate the Agreement according to cl 19.2 (e) of the Agreement between the Plaintiff and the Defendant. I believe that the Defendant has successfully shown that the claim against it is plainly and an unsustainable case justifying the exercise of the powers of the Court under O 18 r 19 (b) or (d) of the Rules of . I will explain my reasoning for coming to the said decision in the following paragraphs.
[4] I will first explain the principles of law that are applicable in an application for summary judgment and striking out. This will be the basis on which I have considered the applications filed by parties.
The Law On Order 14 - Application For Summary Judgment
[5] For a party to successfully obtain an order for summary judgment, it must be shown to Court that the Defendant has no defence to a claim. The law concerning an O 14 application is trite but for this case, I summarise the legal position as follows:-
(i) The application for a summary judgment application is based on the pleadings and the affidavit evidence presented by both the Plaintiff and the Defendant.
(ii) This Court should not enter judgment against the Defendant if it finds that the defence or issue or question in dispute between parties that ought to be tried or that there ought for some other reason to be a trial of the claim or part of the claim. This Court must analyse the affidavit evidence of both parties.
(iii) Generally, in the normal way, it is not appropriate for me to resolve conflicts of evidence on affidavit alone but where such statement or assertion, denial or dispute is unequivocal or lacking in precision or is inconsistent with undisputed contemporary documents or statements then I am duty-bound to reject them and enter judgment.
(iv) This power should be exercised by me in a very clear case where the defence and affidavit filed in opposition do not show any bona fide defence and there are no real issues to be tried.
(v) If a Defendant even raises a single triable issue, it will not be a fit and proper case for summary judgment.
[6] I refer to the decision of Mohamad Azmi SCJ (as His Lordship then was) in Bank Negara Malaysia v. Mohd Ismail , (parts of the judgment of his Lordship reproduced in the summary), South East Asia Insurance Bhd v. Kerajaan Malaysia; [1998] 1 CLJ 1045; [1998] 1 AMR 657 and Ng Hee Thoong v. Public Bank Berhad; [1995] 1 MLJ 281; [1995] 1 CLJ 609; [1995] 1 AMR 622.
The Law On Striking Out Under Order 18 Rule 19 Of The Rules Of - Order 18 Rule 19 (A), (B) Or (D)
[7] As I have stated earlier, the Defendant has also sought to strike out the Plaintiff's claim under either under O 18 r 19(a), (b) or (d) of the Rules of .
[8] The Defendant essentially argues that the claim filed b
