The exercise of summary judgment under Order 14 requires an absence of triable issues; certification of claims must be honored unless proven otherwise by substantial evidence.

[1] This is an appeal by the appellant against the decision of the High Court allowing the respondent's application for summary judgment under O 14 of the RHC 1980 in respect of part of the respondent's counterclaim amounting to RM3,641,315.73 against the appellant.

Factual Background

[2] The appellant (which was the plaintiff at the Court below) at all material times was a developer of a mixed development project in Sabah and was undertaking a project known as the "1 Borneo Hypermall" in Kota Kinabalu.

[3] The respondent (which was the defendant at the Court below) was a company involved in a business of provision of customised system, services and solutions for heating, ventilation and air conditioning. The respondent used green building technology and can custom design building system that operate with maximum energy efficiency.

[4] By a letter of award dated 24 April 2006, the appellant commissioned the respondent to install air-conditioning and mechanical ventilation system and services in the 1 Borneo Hypermall complex. Works have been carried out by the respondent and as at 28 April 2010, a sum of RM3,641,315.73 had been certified completed by the appellant.

[5] The appellant claimed that there were defects and outstanding works not completed by the respondent and the respondent's representations regarding the suitability and fitness for the intended use of the air-conditioning system were false. The appellant further claimed that after the complex was completed, possession of retail units was handed over to respective owners and tenants. However, the appellant received numerous complaints from the owners and tenants about the lack or insufficiency of air-conditioning inside the premises. Consequently the appellant claimed to have suffered loss and damage, ie estimated costs to rectify the air-conditioning system and loss of business reputation for a sum of RM50 million.

[6] On 5 May 2011 the appellant filed a suit against the respondent for damages to be assessed, special damages of RM50 million and liquidated damages at the rate of RM10,000.00 per day to be calculated from 29 November 2007 to the date of the writ with interest and costs.

[7] On 29 June 2011, the respondent filed its statement of defence and at the same time counterclaimed against the appellant for the sum of RM3,641,315.73 for works done, certified and unpaid.

[8] Thereafter, by a Summons-in-Chambers dated 13 September 2011, the respondent applied for summary judgment under O 14 of the RHC 1980 , to be entered against the appellant in respect of the said sum of RM3,641,315.73 in its counterclaim against the appellant.

[9] On 16 December 2011, the High Court granted the respondent's aforesaid application and entered judgment against the appellant for the said sum together with interest at the rate of 4% per annum from 29 April 2010 till the date of judgment and costs of RM80,000.00, which sum is subject to review by the Court upon application by either party.

[10] Subsequently, on 31 January 2012, upon an application of the appellant pursuant to O 14 r 3(2) of the RHC 1980 , the High Court granted a stay of execution of the summary judgment until the trial of the appellant's claims against the respondent in the main suit or until further order. The respondent did not appeal against the stay order. The appellant's main suit has been set down for trial on 4-5 July 2013.

[11] In allowing the said summary judgment in favour of the respondent, the learned High Court Judge found