In summary judgment applications, a defendant must raise credible triable issues; mere allegations without evidence are insufficient to resist the plaintiff's claim.

JUDGMENT

(Enclosure 52)

Ahmad Murad Abdul Aziz JC:

Introduction

[1] The Plaintiff applied for summary judgment (encl 52) against the Defendant pursuant to O 14 r 1 of the Rules of 2012 ("ROC").

After reading the pleadings, the affidavits and the written submissions filed by the parties, I allowed the Plaintiff's application for summary judgment in terms of the prayers in the Statement of Claim. The Defendant, being dissatisfied with my decision, has filed an appeal. The grounds for my decision appear below.

Background Facts

[2] The background facts in this case are extracted from the Plaintiff's written submission.

[3] In or around 2019, Country Garden Sdn Bhd had commenced a tender process pertaining to an award of contract for rectification and maintenance works and/or services ("the Works") for Cadangan Pembangunan Berstrata 7 Blok Pangsapuri Perkhidmatan 40 Tingkat (2805 units) on Plot 29 (A portion of PTD 4918), Forest City, Mukim Tanjung Kupang, Johor Bahru, Johor Darul Ta'zim ("the said Project").

[4] Country Garden awarded the Works to the Defendant via a Letter of Award ("the Letter of Award") dated 31 May 2019, and the Defendant accepted the award on 1 June 2019.

[5] The salient terms of the Letter of Award are:

i. The Defendant/Cason Design is the appointed contractor while Country Garden is the employer ("Employer") of the said Project;

ii. The agreed contract sum is RM5,435,419.20;

iii. The Defendant is required, among other things, to undertake and complete the Works for the said Project;

iv. The date of commencement of the contract is 11 May 2019, and the date of completion is 20 April 2020.

[6] The Defendant offered to appoint the Plaintiff to undertake and complete the Works on its behalf as a subcontractor, and the price offered was RM5,335,784.00. The Plaintiff accepted the offer, which was made orally by the Defendant, and started work some time in June 2019.

[7] The Defendant formalised the offer to the Plaintiff via a Letter of Award dated 8 July 2019 ("the Subcontract Award"), which offer was duly accepted by the Plaintiff. The key term of the Subcontract Award was that the Plaintiff had to undertake and complete the full scope of the Works in accordance with the specifications in the Letter of Award. In short, the Defendant only took a small profit of about RM100,000.00 and subcontracted the full scope of his obligations for the Works to the Plaintiff.

[8] Thereafter, the Plaintiff issued tax invoices to the Defendant throughout the subcontract period for the value of the work done by the Plaintiff. (See exhibit LZH-17 of the Plaintiff's Affidavit in Support.)

The Plaintiff alleged that the Defendant had received all the invoices without indicating any objections to those invoices. In other words, the Defendant did not formally dispute any of the invoices sent by the Plaintiff. The Defendant, however, did not settle any of the invoices issued by the Plaintiff. As at the date of filing the writ, the Defendant owed the Plaintiff a total sum of RM2,787,967.97 (the outstanding sum).

[9] Meanwhile, Country Garden, as the employer, had approved and paid all of the Defendant's claims up to the month of February 2020, totaling the sum of RM2,934,016.23. (See para 21 and 22 and Exhibit LZH 18 of the Plaintiff's Affidavit in Support.) Despite receiving payment from Country Garden, the Defendant failed to settle any of the Plaintiff's invoices.

[10] When no payment was made to the Plaintiff on its invoices, the Plaintiff filed this suit, and upon the Defendant filing his appearance to this suit, the Plaintiff filed this application for summary judgment.

[11] Meanwhile, after filing the suit herein, the Plaintiff obtained a Mareva Injunction against the Defendant on 5 July 2020. The Mareva Injunction for the sum of RM2,787,967.07 was given by the Court against the Defendant at the inter-parte stage.

The Law On Summary Judgment

[12] The law governing applications under Order 14 of the ROC are as follows:

For the purposes of an application