A summary judgment can be granted when the plaintiff establishes a prima facie case and the defendant fails to raise a bona fide defense, even if contesting the execution of documents.

Evrol Mariette Peters JC:

Introduction

[1] This was the plaintiff's application ("this application") in encl 5 for summary judgment against the defendant pursuant to O 14 of the Rules of 2012 ("Rules of ") for the sum of HKD1,964,384 plus interest and costs.

The Factual Background

[2] The plaintiff, a company incorporated under the laws of the Macau Special Administrative Region of the People's Republic of China ("Macau"), and the defendant, a casino patron, entered into an arrangement sometime in 2018-2019 whereby the defendant had acquired from the plaintiff, casino chips on a credit (deferred payment) basis worth HKD2 million ("the Credit Arrangement").

[3] The defendant had signed various documents, such as the Marker Signing Privileges Application/Agreement, Marker Limit Increase Request, Promissory Note, and Promissory Note Cover Letter ("the Documents") evidencing the Credit Arrangement and the credit that he purportedly took. After taking into account a credit balance of HKD35,616 in his account with the plaintiff, a sum of HKD1,964,384 was still owing under the Credit Arrangement.

[4] Despite having been issued a letter of demand by the plaintiff, the defendant failed to pay the monies owed. As a result thereof, in March 2021, the plaintiff initiated a claim ("this Claim") for the monies owed, and filed this application in May 2021, which was allowed for the following reasons.

Contentions, Evaluation, And Findings

[5] It is trite law that the Court may order summary judgment only in plain and obvious cases. The plaintiff, therefore, pursuant to O 14 r 1 of the Rules of , needs to fulfill the following preliminary requirements:

(i) the statement of claim must have been served on the defendant;

(ii) the defendant must have entered an appearance; and

(iii) the affidavit-in-support of the application must comply with the requirements of O 14 r 2 of the Rules of .

[6] In the present case, since these requirements were fulfiled, the plaintiff had established a prima facie case. The burden, therefore, shifted to the defendant to satisfy the Court why judgment should not be given against him: 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; 2005 MarsdenLR 191 ; [2006] 3 CLJ 544.

Whether The Documents Were Executed By The Defendant?

[7] At the outset the defendant completely denied having executed the Documents, and claimed that this was an issue that was triable.

[8] At this juncture, it was germane to note that in this Application, the burden was on the defendant to raise a triable one. I am mindful that the threshold to raise triable issues is not a high one. However, a triable issue does not mean any issue that is raised, but one which requires a full trial for the evaluation of evidence, including oral evidence, to be considered and evaluated before a decision is made. Bare denials and bare averments are bad defences which will not give rise to a triable issue: Abd Rahim Abd Rahman & Ors v. DMD Industries Sdn Bhd & Ors.

[9] In my view, the defendant's denial of ever executing the Documents was a bare one and in light of the evidence adduced, this was not a triable issue. Furthermore, if the defendant had not executed the Documents, as he claimed, it begs the question why the defendant had never protested, nor responded to the letter of demand dated 22 January 2021 that was sent to him by the plaintiff?

[10] Such omission by the defendant had compromised his contention that there was a triable issue and bona fide defence, as expounded in several cases including David Wong Hon Leong v. Noorazman Adnan, [1995] 3 MLJ 283, Jetara Sdn Bhd v. Maju Holdings Sdn Bhd; [2007] 3 MLJ 609; [2007] 3 CLJ 41, and Dream Property Sdn Bhd v. Atlas Housing Sdn Bhd; [2008] 2 MLJ 812; [2007] 6 CLJ 741. In Jetara Sdn Bhd v. Maju Holdings Sdn Bhd, it was stated by Gopal Sri Ram JCA (as he then was) in th