A claimant must substantiate allegations with credible evidence to establish a triable defense; mere assertions or denials are insufficient.

JUDGMENT

Evrol Mariette Peters JC

Introduction

[1] This was the Fourth Defendant's application ("this Application") in encl 28 for summary judgment pursuant to O 14 of the Rules of Court 2012 ("Rules of Court") for its counterclaim against the Plaintiff for the sum of MYR202,771.36.

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 Fourth Defendant, Majlis Amanah Rakyat ("MARA") via a letter ("Surat Tawaran Pembiayaan Perniagaan MARA") dated 15 June 2016, offered the Plaintiff a Bai Al Inah financing facility ("the Facility") in the amount of MYR180,000, 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, he 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 6 May 2020, the Plaintiff instituted an action against the Defendants, for damages for the failure of his 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, the Fourth Defendant filed a counterclaim, and on 14 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 him in the counter-claim: per George Seah FJ in National Company For Foreign Trade v. Kayu Raya Sdn Bhd , 1984 MarsdenLR 58 , 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 has a triable defence to the counterclaim. 'This simply means that it is for the Plaintiff to show on merits, he 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 the Fourth Defendant, but by the Third Defendant and merely copied to the Fourth Defendant. Furthermore, there was no requirement in the MOU or any document whatsoever for a feasibility study to be conducted.

[10] Secondly, the Plaintiff on his own volition and without any encouragement whatsoever from the Fourth Defendant, had accepted the Fac