JUDGMENT

1. This is an appeal against the decision of the Registrar who granted a summary judgment in favour of the plaintiff/respondent. Originally the application was for a summary judgment under O. 14 and alternatively to strike out the defendant/appellant's Statement of Defence and Counterclaim under O. 18 r. 19 of the Rules of the High Court (hereinafter referred to as "RHC"). However, at the hearing of this appeal the plaintiff was asked to elect and he elected to proceed under O. 18 r. 19 RHC. See MOHD. AZAM SHUJA & ORS V. UNITED MALAYAN BANKING CORPORATION BHD (1995) 2 MLJ 851. In this appeal, for the sake of convenience the respondent and the appellant will be referred to as the plaintiff and the defendant as in the hearing at the first instance before the Registrar. [2]

2. After the judgment was made, the appellant had applied and obtained from the High Court leave to amend its Statement of Defence and Counterclaim. At the hearing of this appeal, reference was made to the Amended Statement of Defence and Counterclaim. As the hearing of this appeal is by way of a rehearing of the case, the court will hear it as if it is heard for the first time. See TUAN HJ. AHMED ABDUL RAHMAN V. ARABMALAYSIAN FINANCE BERHAD (1996) 1 MLJ 30.

3. The principle in respect of an application under O. 18 r. 19 RHC is well established. It is only in plain and obvious cases that recourse should be had to summary process under O. 18 r. 19. It cannot be exercised by minute examination of facts and documents nor can it be tried on affidavit evidence alone. In BANDAR BUILDER SDN. BHD. V. UNITED MALAYAN BANKING CORPORATION BHD (1993) 2 AMR 34 the Supreme Court said:-

"The principles upon which the court acts in exercising its power under any of the four limbs of Order 18 r 19(1) RHC are well settled. It is only in plain and obvious cases that recourse should be had to the summary process under this Rule (per Lindley MR in Hubbuck V. Wilkinson (1899) 1 QB 86, p.91) and this summary procedure can only be adopted when it can be clearly seen that a claim or an answer is on the face of it "obviously unsustainable"."

4. The authorities further show that if there is a point of law which requires serious discussion, an objection should be taken on the pleadings and the point set down for argument under O. 33 r. 3 (which is in pari materia with our O. 32 r. 2 RHC) per Lindley MR. (ibid).

5. It cannot be exercised by a minute and protracted examination of the documents and facts of the case in order to see whether the plaintiff really has a cause of action, and/or an application to strike out the statement of claim and to dismiss the action, it is not permissible to try the action on affidavits when the facts and issues are in dispute. (WENLOCK v. [ILLEGIBLE WORD] 1965) 2 All ER 871 - CA) See also LOH HOLDINGS SDN BHD v PEGLIN [3] DEVELOPMENT SDN BHD (1984) 2 MLJ 105 [FC]; VEETAK ENTERPRISE SDN BHD v KUALA LUMPUJR FINANCE BHD (1987) 1 MLJ 407 and RAJA ZAINAL ABIDIN B. RAJA HJ. TACHIK & 3 ORS v. BRITISH AMERICAN LIFE & GENERAL INSURANCE BHD (1993) 2 AMR 36 [SC].

Brief Facts

6. The plaintiff's claim against the defendant was for a sum of RM305,148.83 being the balance payment for service rendered and goods supplied in connection with the construction, sealing and tarring of roads, lawns surrounding the shophouses and parking spaces at RPR, Siol Kandis Kanan, Lot 302, Block 14, Salak Land District, Petra Jaya, Kuching. When the plaintiff sent the defendant a letter demanding that the defendant pay the sum claimed, i.e. RM305,148.83, the defendant had made some payments amounting to RM45,000. The defendant had not raised or disputed the amount. No mention or reference was made to the existence of the alleged oral agreement between the parties, and that the plaintiff had breached it.

7. In this case, the Amended Statement of Defence and Counterclaim were bulky, and out of the 56 paragraphs, only paragraphs 2 and 12 are of signal importance for the consideration