The burden of proof shifts to the respondent to demonstrate triable issues in a summary judgment application once prerequisites are established.

[1] This is an appeal against the decision of the learned High Court Judge dated 9 November 2017, who allowed the Plaintiffs' application to enter summary judgment against the Defendant pursuant to O 14 r 1 of the Rules of 2012.

[2] The Plaintiff had instituted a representative action on behalf of himself and 137 owners of serviced apartments ("the owners") to recover arrears of rental payment from the Defendant pursuant to Option Agreements between the Defendant and the owners.

[3] For ease of reference parties will be referred to as they were in proceedings before the High Court.

Background Facts

[4] The Plaintiff is a Malaysian citizen and owner of Unit No C-21-08 which is one of a number of serviced apartments known as "The Arc @ Cyberjaya" ("the serviced apartment"). The Plaintiff filed this representative action in the High Court on behalf of himself as owner of the serviced apartment as well as on behalf of the other owners of the serviced apartment, totalling in all 137 owners. The list of the 137 owners on whose behalf the representative action was filed was duly attached to the Writ.

[5] The Defendant is a developer company incorporated in Malaysia which sold units of the service apartment to the owners and which thereafter rented the units of the serviced apartment from the owners to tenants.

[6] The Defendant had entered into Option Agreement with the Plaintiff and other 137 owners respectively. Pursuant to the Option Agreement, the Defendant agreed to rent the units of the serviced apartments from the Plaintiff and the other 137 owners. (A sample copy of the Option Agreement dated 3 February 2012 was exhibited as CHK-1 in the Plaintiff's Affidavit-In-Support affirmed on 27 July 2017).

[7] The primary obligations of the Plaintiff and the Defendant in respect of the terms of the payment of rental are reproduced below. In the Option Agreement the Defendant is referred to as the "Vendor", and the Plaintiff is referred to as "the Purchaser". The rate of payment of rental as well as the due date of payment is provided in cls 3.1 and 6.1 (a) of the Option Agreement as follows:

Clause 3.1

"The Vendor shall pay to the Purchaser the rental at the rate stated in s 4 of the First Schedule hereto (hereinafter referred to as "the Monthly Rental"), in arrears on a quarterly basis, the first of such payment shall be made on the first day of the fourth (4th) calendar month from the Commencement Date and thereafter payable quarterly on the first day of the relevant calendar month..."

Clause 6.1 (a)

"During the Term or the Renewed Term (as defined under cl 9.1 herein), as the case may be, the Vendor hereby agrees and covenants with the Purchaser that the Vendor shall (a) pay or cause to be paid to the Purchaser the Monthly Rental in accordance with the Term hereof".

[8] Pursuant to cls 3.1 and 6.1 (a) of the Option Agreement, the Defendant was obliged to pay the monthly rental once in every three months, and at the end of the third month, payment would be due on the 1st day of the fourth month. Thus, the due date for payment of rental was on the 1st day of the relevant calendar month every three months ie quarterly.

[9] The Plaintiff had instituted this suit for himself as well as on behalf of 137 owners of the serviced apartment on the allegation that the Defendant had defaulted in the payment of rental to the Plaintiff and the 137 owners for a continuous period of not less than 60 days in breach of cl 10.5 of the Option Agreements.

Clause 10.5 provides as follows:

"If the Vendor fails to pay the Monthly Rental or the Revised Rental (as the case may be) in the manner and time as provided herein or as may be agreed upon between the parties hereto for a continuous period of not less than sixty (60) days, the Purchaser shall give notice in writing ("said notice") specifying the Vendor's aforesaid breach and req