VT Singham J:

Setelah membaca dan meneliti Rekod Rayuan, Rekod Rayuan Tambahan, hujah-hujah bertulis bersama-sama dengan otoriti-otoriti dan seterusnya mendengar hujah-hujah secara lisan oleh kedua-dua pihak keputusan mahkamah adalah seperti berikut:

Pertama:

(i) Mahkamah ini benarkan prosiding rayuan ini diteruskan walaupun tuntutan responden/plaintif adalah kurang daripada RM10,000 dan dihalang di bawah s.28(1) Akta Mahkamah Kehakiman 1964. Mahkamah ini benarkan rayuan diteruskan di atas alasan bahawa perayu telah membangkit soalan undang-undang berkaitan dengan Akta Sewerage Services Act 1993 dibaca bersama dengan Sewerage Services (Charges) Regulation 1994.

2. As to the appeal, the appellant has raised six questions of law in this appeal:

(i) Whether the plaintiff is in law required to adduce evidence by affidavit to make out a reasonable prima facie cause of action or triable issue of fact when faced with a striking out application by the defendant?

(ii) Whether the Magistrate should have held following Ng Hee Thoong & Anor v. Public Bank [1995] 1 CLJ 609 that the failure of the plaintiff to rebut or contradict the defendant's assertion that no sewerage services was provided to him constituted an admission of the said fact by the plaintiff.

(iii) Whether in a striking out application by the defendant, the Magistrate can order a full trial of the case in the face of the unchallenged affidavit by the plaintiff on the evidence of the defendant that no sewerage services were provided to him by the plaintiff?

(iv) Whether a claim under the Sewerage Services Act 1993 read with Sewerage Services (Charges) Regulations 1994 without stating any particulars on the mode/basis of calculation of the sewerage services is - valid or proper in law?

(v) Whether in the absence of any affidavit in reply by the plaintiff or affidavit evidence to rebut the defendant's assertion that no sewerage services was provided by the plaintiff, the defendant is entitled to succeed in striking out the plaintiff's claim?

(vi) Whether the Magistrate having reserved his decision is required to give reasons or grounds for dismissing the defendant's striking out application?

3. Section 2 under interpretation of the sewerage services Act 1993 "sewerage services" means the collection conveyance treatment and 'disposal of' sewerage, and includes the operation and maintenance of a sewerage system and the clearing, cleaning and emptying of septic tanks.

4. Regulation 2 under Interpretation of the sewerage services (charges) Regulations 1994 states: "connected services, septic tank services" means the clearing, cleaning, emptying, removing and transporting of the sewerage sludge from septic tanks and includes the operation and maintenance of a sewerage system for the proper treatment and disposal of the sewerage sludge collected therefrom.

5. The plaintiff's claim is for the sum of RM1,074 being sewerage services rendered to the defendant for which it is alleged bills have been sent to the defendant for payment but the defendant has failed, refused and neglected to settle the total sum of RM1,074 which has been calculated as at 30 September 2002. The defendant has by the S/Defence denied the plaintiff's claim.

6. Jawapan Kepada Soalan 1

(1) In this case, the defendant has filed and served an application to strike out the plaintiff's claim against him on the ground that the claim is frivolous and it is otherwise an abuse of the process of the court and this is conceded by the plaintiff's counsel. The respondent/plaintiff is required in law to adduce evidence by an affidavit in reply to oppose the defendant's application to strike out the statement of claim and to oppose that their claim against the defendants ought not to be struck out or dismissed by summary application.

(2) Consequently, failure on the part of the respondent/plaintiff to file and serve an affidavit in reply to the appellant's/defendant's notice of application and affidavit affirmed on 17