Siti Norma Yaakob J:

The application before me was an appeal against the decision of the Senior Assistant Registrar allowing the plaintiff leave to sign final judgment under O. 14 against the defendant. Before the Senior Assistant Registrar there were only the statement of claim, the statement of defence and the plaintiff's affidavit in support of the O. 14 application. No affidavit in reply was filed by the defendant despite an opportunity being given by the Senior Assistant Registrar to do so, and reading the statement of defence, which is a bare denial of the plaintiff's claim, it is no wonder that the Senior Assistant Registrar granted the plaintiff's application for summary judgment.

Before me the defendant attempted to improve its position by filing the affidavit in reply to the plaintiff's application and since the appeal is in the nature of a rehearing, the plaintiff had not objected to the affidavit being filed at the appeal stage.

The plaintiff's claim is for RM45,000 being the sum which the defendant had undertaken to pay the plaintiff in the event negotiations for an earthwork and turnkey project that were to be completed on the defendant's housing scheme turn out to be unsuccessful. The undertaking is contained in a letter dated 21 May 1984 which is acknowledged by the directors of both parties.

Prior to the undertaking, the plaintiff, a contractor, had at the instance of the defendant commenced excavations and filling of earthworks at the defendant's building site. The works only proceeded for 3 months before they were suspended by which time the plaintiff had done work to the value of RM45,492.50. When the plaintiff demanded payment of that sum, the defendant responded by agreeing to negotiate further with the plaintiff for the completion of the earthwork and turnkey project at its housing scheme, As consideration for such negotiations, the defendant undertook to pay RM45,000 to the plaintiff in the event such negotiations were unsuccessful and it was under these circumstances that the letter dated 21 May 1984 came to be written.

In its statement of defence, the defendant admitted that the plaintiff had commenced excavation and filling earthworks at its housing project but makes no mention as to whether any sums were due to the plaintiff for such works. It also admitted that it had negotiated with the plaintiff for the purpose of awarding the plaintiff a contract to build the houses at the building site and that if negotiations fail, it was prepared to pay the plaintiff a reasonable sum for works done and services rendered. It denied the plaintiff's claim for RM45,000 and makes no mention whatsoever as to the letter of undertaking dated 21 May 1984.

In its affidavit in reply filed 8 months after the statement of defence, the defendant pleaded that it has no privity of contract with the plaintiff as the works for which payment had been demanded had been awarded to another contractor who in turn sub-contracted such works to the plaintiff. This plea runs contrary to what it had admitted earlier in its statement of defence dated 6 March 1986. If indeed the plaintiff was a sub-contractor, this fact must have been known to the defendant all along and yet, that was not pleaded in the statement of defence. As for the letter of undertaking, the defendant avers that it was wrongfully written as it did not receive the consents of all the Board members or alternatively, it is unenforceable as being unsupported by any consideration.

The letter of undertaking dated 21 May 1984, written on the defendant's letterhead and addressed to the plaintiff, is acknowledged by the directors of both parties following a meeting they had between them. The defendant cannot now disclaim liability by stating that it was written without the consent of its board of directors. So long as it is written by somebody with authority in the defendant's company, it must be presumed that he had the necessary authority to commit the defendant com