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COURT OF APPEAL KUALA LUMPUR
PERKAPALAN SHAMELIN JAYA SDN BHD & ANOR – Appellant
Versus
ALPINE BULK TRANSPORT NEW YORK – Respondent
[1997 Clj Jt(20)]
[1] The first appellant before us (first defendant in the court below) entered into a time charter with the respondent (plaintiff in the court below). The time charterparty was in respect of a vessel known as "the MV Mreznica" and was for a period of three months and fifteen days commencing 11 August 1988. The charter payable was US$4,500 per day. The first appellant then nominated the second appellant (second defendant in the court below) to have the use of the vessel under the aforesaid time charter. However, the first appellant undertook to be answerable for all acts of default occasioned by the second appellant under the time charter. Later, the respondent furnished an account of all sums due under the contract contained in the time charter. There was default in payment and the respondent therefore instituted proceedings against both appellants to recover the sum of US$155,239.80.
[2] The writ was issued on 11 August 1993. The appellants entered an appearance to the writ. They then delivered their defence on 29 September 1993. On 23 February 1994 the respondent took out a summons for judgment under O 14 of the Rules of the High 1980 ('the Rules'). The appellants resisted the summons on a number of grounds. The grounds advanced included an argument that the respondent had been guilty of inordinate and unexplained delay in moving the court for summary judgment. Accordingly, the appellants argued that they should have unconditional leave to defend the action. The learned judge who heard the summons came to the conclusion that the issues raised by the appellants were not bona fide triable. He nevertheless granted the appellants leave to defend upon the condition that the appellants shall pay to the respondent's solicitors a sum in Malaysian Ringgit equivalent to US$155,239.80 to be held by the said solicitors in an interest-bearing account until further order. Against this order the appellants appealed to this court.
[3] Two grounds were advanced in support of the appeal. First, it was argued that the wrong plaintiff had brought the action. Second, that the respondent had been guilty of delay in applying for summary judgment. We rejected both arguments and dismissed the appeal.
[4] There is absolutely no merit in the argument that the respondent was the wrong plaintiff. The respondent was a party to the time charter in question. It was therefore entitled to bring the action.
[5] In support of the delay argument, the appellants relied upon the decision of this court in Ng Hee Thoong & Anor v. Public Bank Bhd, [2000] 2 MLJ 29. It was submitted by counsel that that case is authority for the proposition that a plaintiff's summons for summary judgment may be defeated solely upon the ground of delay in making the application. With respect, we are unable to accede to the submission made by counsel for the appellants.
[6] In Ng Hee Thoong & Anor v. Public Bank Bhd, [2000] 2 MLJ 29 this court reversed the High court and granted leave to defend principally on the ground that the issue whether a valid demand had been made of the defendants in that case was plainly arguable. This court also took into account the fact that the plaintiff in that case had remained inactive for more than a year and then moved for summary judgment without giving notice of intention to proceed under the relevant provision of the Rules. When properly understood, there is nothing in Ng Hee Thoong & Anor v. Public Bank Bhd; [[2000] 2 MLJ 29; [2000] 1 CLJ 503; [2000] 1 AMR 407 case to suggest that an application for summary judgment may be defeated solely on the ground that there has been a delay in moving the court. Such a proposition runs counter to the interests of justice. For delay can surely provide no answer to an application made under O 14 where there are no bona fide triable issues. We therefore take this opportunity to declare the absence of the proposition contended for by counsel.
[7] In our judgment, authority that is plainly
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