JUDGMENT

1. On 16.9.97, the plaintiff took out this Summons In Chambers (enclosure 14) praying that the plaintiff be at liberty to enter judgment against the defendant for the sum of RM474,297.40 together with interest thereon at the rate of 10% per annum from the date of the filing of the writ until judgment and thereafter at the rate of 8% per annum until full and final settlement.

2. The grounds of the application are that the defence filed herein:-

(i) ;discloses no reasonable defence; or

(ii) ;it is scandalous, frivolous or vexatious; or

(iii) ;it may prejudice or delay the fair trial of the action; or

(iv) ;it is otherwise an abuse of the process of the court. [2]

3. Although there is no intitule to this application, it is clear from the abovesaid four grounds of application that they are worded according to O.18 r. 19(1) of the Rules of the High Court, 1980. However the learned counsels for both the plaintiff and defendant proceeded to submit relying on O. 14 r. 1, instead.

4. In this case, the claim of the plaintiff against the defendant is for the balance of the purchase price of goods and materials sold and delivered to the defendant.

5. In the defence dated 10.5.97, the defendant contested and put the plaintiff to strict proof how the sum of RM474,297.40 was calculated. The defendant also alleged that the goods supplied to the defendant were for the use of the construction of two condominium tower blocks at the Bintulu Beach Resort and that it was an implied terms of their dealings that payment would only be made after the use of the said goods. According to the defendant, the works in respect of the construction of the said tower blocks were suspended in February 1996 before the goods and materials supplied could be used.

6. The defendant further contended in the said defence that the plaintiff had removed the said goods from the site of the Bintulu Beach Resort and the goods are now in the plaintiff's possession and custody.

7. From the outset of his submission, the learned counsel for the defendant urged the court to strike out this application on the ground that there was a delay of about four months from the date of the filing of the defence until the plaintiff took out this application. In support of his contention, the learned counsel cited the case of STANDARD CHARTERED BANK MALAYSIA BERHAD v ENG SONG HUAT [1996] 1 MLJ 446 , where Kamalanathan Ratnam J.C. (as he then was) held that: [3]

"With regard to the question of delay, I find that since the statement of claim was filed on 30 April 1994 and appearance entered on 28 May 1994, the plaintiff ought to have filed their O 14 application soon after their appearance has been entered (following Krishnamurthy)."

8. From the abovementioned narration, the learned Judicial Commissioner proceeded to deal with a few other authorities and seemed to hold the view that the question of unexplained delay alone would be sufficient to set aside an application under O. 14.

9. In BATU EMAS ENTERPRISE (suing as a firm) v SYARIKAT AWANG RADIN & 3 ORS (1995) 2 CLJ 69, I said that the absence or unacceptability of an explanation given by the plaintiff for the delay is a question to be decided by the court. Unless it is clear that the defence is unsustainable, the court may proceed to examine the events of the case to determine whether or not a summary judgment can be made in the case.

10. I am fortified in the view by the more recent decision of the Court of Appeal in PERKAPALAN SHAMELIN JAYA SDN BHD & ANOR v ALPINE BULK TRANSPORT NEW YORK [1997] CLJ JT(20), Gopal Sri Ram JCA, dealt with the argument of delay by counsel for the appellants and held:-

"In support of the delay argument, the appellants relied upon the decision of this court in Ng Hee Thoong & Anor v Public Bank Bhd [1995] 1 CLJ 609. 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