The court affirmed that acceptance of goods precludes rejection, upholding the plaintiff's claim for payment despite the defendants' non-conformity arguments.

JUDGMENT

JUDGMENT Abdul Malik Ishak J:

Introduction

The plaintiff filed two summonses-in-chambers: one, dated 22 June 1998 (encl. 14), and the other, dated 12 February 1999 (encl. 29) seeking, inter alia, an order for summary judgment to be entered against the second and the third defendants (encl. 14) and the first defendant (encl. 29) pursuant to O. 14 of the Rules of the High Court 1980 ("RHC").

On 28 May 1999, the senior assistant registrar ("SAR") heard encls. 14 and 29 and forthwith dismissed it with costs. The SAR's decision favoured all the defendants. Being aggrieved, the plaintiff filed a notice of appeal to the judge in chambers dated and filed on 2 June 1999 (encl. 34) against the decision of the SAR. This judgment centred entirely on encl. 34.

In so far as encl. 14 was concerned, the relevant affidavits considered by this court would be:

(1) the affidavit of Leong Kok Kheng affirmed on 22 June 1998 in encl. 13;

(2) the affidavit of Ho Foon Foo affirmed on 2 July 1998 in encl. 18; and

(3) the affidavit in reply of Leong Kok Kheng affirmed on 17 July 1998 in encl. 22.

In regard to encl. 29, the relevant affidavits for perusal would be:

(1) the affidavit of Khoo Eng Guan affirmed on 12 February 1999 in encl. 28;

(2) the affidavit of Ho Foon Foo affirmed on 15 March 1999 in encl. 30; and

(3) the affidavit in reply of Khoo Eng Guan affirmed on 7 April 1999 in encl. 32.

When the SAR heard and dismissed encls. 14 and 29 with costs on 28 May 1999, all the defendants have yet to file their defences. The first defendant's statement of defence and counterclaim dated 14 June 1999 was filed on 15 June 1999 as seen in encl. 35. The second and the third defendants' statement of defence dated 16 June 1998 was filed on the same date as seen in encl. 12.

The Plaintiff's Statement Of Claim

The plaintiff's claim was for a sum of RM304,988.22 calculated from 23 July 1997 till the date of full payment together with interest at the rate of 1.5% per month together with costs. That sum claimed being the outstanding sum for goods sold and delivered to the first defendant. The plaintiff also brought and instituted the claim for the same amount and at the same rate of interest together with costs against the second and the third defendants who stood as guarantors pursuant to the guarantee and indemnity dated 4 July 1997.

The Statement Of Defence And Counterclaim Of The First Defendant

In their defence dated 14 June 1999 as seen in encl. 35, the first defendant admitted the sale and delivery of the goods from the plaintiff but denied owing a sum of RM304,988.22 and put the plaintiff to strict proof thereof (see para. 4 of encl. 35). The first defendant pleaded the following defences:

(i) that the plaintiff was not entitled to charge penalty interest at the rate of 1.5% per month (see para. 5 of encl. 35);

(ii) that the plaintiff failed to deliver the goods in conformity with specifications, quantity, time and price as set out in the purchase orders of the first defendant (see para. 6 of encl. 35);

(iii) that the first defendant was entitled to a set-off of the sum of RM304,988.22 on the ground that the plaintiff's purported breach of contract had caused the first defendant to suffer loss as the first defendant was unable to honour their contracts with a third party, namely, HKH Engineering (M) Sdn Bhd (see para. 7 of encl. 35).

The first defendant counterclaimed for a sum of RM326,323.55 for loss of profits.

The Statement Of Defence Of The Second And The Third Defendants

In their statement of defence in encl. 12, the second and the third defendants denied any sale and delivery of the goods to the first defendant and put the plaintiff to strict proof thereof (para. 4 of encl. 12). The second and the third defendants too denied executing the guarant