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2021 MarsdenLR 1993
HIGH COURT MALAYA JOHOR BAHRU
YINSON CORPORATION SDN BHD – Appellant
Versus
PERFECT MIX PORTFOLIO SDN BHD & ORS – Respondent
[Civil Suit No: JA-22NCC-53-09/2020]
In summary judgment applications, unsubstantiated claims and lack of triable issues do not provide sufficient grounds to resist judgment.
Headnote:(A) Evidence Act 1950 – Section 90A – Summary Judgment Application – Plaintiff's application for summary judgment against defendants to recover outstanding sum for cement supplied was allowed. The 1st defendant's claim of substandard cement quality was unsupported; claims surrounding internal concrete cube tests did not undermine cement quality. Defendants failed to prove triable issues regarding guarantees and signature validity.
Issues raised were unsubstantiated and afterthoughts. (Paras 8-10, 12, 22, 31, 36)
(B) Summary Judgments – The court may grant summary judgment only if there is a clear lack of triable issues; mere assertions by the defendants were insufficient to prevent summary judgment. (Paras 26, 36)
(C) Guarantees – The terms of the guarantee were clear; absence of evidence of fraud or objection to the certificate of indebtedness led to liability for the outstanding debts of the company being reaffirmed. (Paras 22-25).
JUDGMENT
Introduction
[1] This is the plaintiff's application ("this Application") in encl 8 for Summary Judgment against the defendants.
The Background Facts
[2] The plaintiff is a company based in Kuala Lumpur and is in the business of selling and supplying, inter alia, cement and other cement-based products. The 1st defendant, based in Johor Bahru, is a manufacturer of ready mixed concrete, whilst the 2nd and 3rd defendants are the guarantors of the 1st defendant.
[3] At the request of the 1st defendant, the plaintiff had sold and delivered cement to the 1st defendant, which then used the cement to produce ready- mixed concrete for sale to its customers.
[4] It is undisputed that the 1st defendant had acknowledged receipt of the cement delivered by the plaintiff by signing and affixing its rubber stamp on the Delivery Notes. However, the 1st defendant had, to date, failed to settle the prices of the cement amounting to RM5,863,903.91 ("the Outstanding Sum"), whilst the 2nd and 3rd defendants, as guarantors, had also failed to pay the Outstanding Sum.
[5] The plaintiff commenced this action against the defendants on 23 May 2020 to recover the Outstanding Sum, and on 15 June 2020, filed this Application. This Application was allowed for the following reasons.
The Applicable Law
[6] It is trite law that the Court may order summary judgment only in plain and obvious cases. The plaintiff, therefore, needs to fulfil the following preliminary requirements:
(i) the statement of claim must have been served on the defendants;
(ii) the defendants must have entered an appearance; and
(iii) the affidavit-in-support of the application must comply with the requirements of O 14 r 2 of the Rules of .
[7] Once these considerations are satisfied, the plaintiff will have established a prima facie case and it becomes entitled to judgment. The burden then shifts to the defendants to satisfy the Court why judgment should not be given against them: per George Seah FJ in National Company for Foreign Trade v. Kayu Raya Sdn Bhd , which has been followed in a plethora of cases including Cempaka Finance Bhd v. Ho Lai Ying & Anor, .
Contentions, Evaluation, And Findings
Whether The Internal Concrete Cube Tests Were Relevant
[8] The common contention of the defendants in resisting this Application was that the quality of the cement was substandard, as indicated by internal concrete cube tests results.
[9] The 1st defendant claimed that it had sent the internal concrete cube tests results accompanied by a letter dated 3 September 2019, issued to the plaintiff, highlighting the cement quality. In my view, there were too many doubts surrounding these internal concrete cube tests results, as there was no proof that the plaintiff had even received this letter, as the courier slip (exhibited as PM2, attached to the Affidavit-In-Reply of the 1st defendant, affirmed by its Managing Director, Lee Kian Wei, dated 9 July 2020) pointed only to the words "Pre-confirm cheque" written on the "Remark" part of it. This did not corroborate the 1st defendant's contention that the purported letter dated 3 September 2019, together with the internal concrete cube tests results were couriered to the plaintiff.
[10] Secondly, even if the internal concrete cube tests results were in fact couriered to the plaintiff, such tests did not establish that the quality of the cement had been compromised, in view of the fact that there is a difference between cement and concrete, the former being merely an ingredient of the latter. The purpose of the internal concrete cube tests was not to determine the quality of the cement, but only to assess the strength of the concrete, which depended on several other factors. It follows, therefore, that challenging the quality of the cement supplied, warranted tests conducted purely on the cement powder and nothing else, which was not done in this case.
[11] Thirdly, if there was indeed an issue regarding the quality of the cement, it was an a
