Roberts, C.J.

BACKGROUND.

This appeal, to a Judge in chambers, under Order 56 rule 1 of the Brunei Rules of the High Court, 1990 ("BRHC") was brought against a decision of a Registrar, on 25th April, 1996.

The Registrar then refused the application of the plaintiff for summary judgment under O.14 BRHC.

The statement of claim was dated 15th February, 1996. The writ was served on the defendant on 1st March, 1996. The defendant entered an appearence on 5th March, 1996. The defence was dated 5th April, 1996.

In addition to the defence, the defendant has sworn no affidavit in support of it. There has, however, been an affidavit, sworn by Ng Phuay Cheng ("Mr Ng") the marketing executive of the plaintiff, dated 25th March, 1996.

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THE PLEADINGS.

The claim by the plaintiff is for $446,800, the balance of the price of machinery, vehicles, equipment and spare parts ("the equipment") sold and delivered by the plaintiff to the defendant at the latter's request.

The statement of claim sets out both the full amount of the price of the goods supplied and the amount already paid by the defendant, which was $449,315 (cents omitted).

The defence was that, while the defendant admitted the delivery of the equipment, the defendant was entitled to set off the amount of damage suffered by it, due to a breach of conditions and warranties on the part of the plaintiff.

It was alleged by the defendant that it was an implied term of the contract between the parties that the equipment would be free from defects and fit for the purposes for which it was required by the defendant.

The defence further asserts that the equipment broke down, "due to numerous defects not attributed to ordinary wear and tear".

Particulars are given of the way in which twelve pieces of equipment supplied by the plaintiff had proved unsatisfactory. No details were given of the expense of repair of the articles of equipment so purchased. It is to be noted that about twenty pieces of equipment were supplied. Nothing was said of the other pieces in the defence.

PREVIOUS HISTORY.

A sales contract was entered by the parties on 25th November, 1994, for the supply of about 20 pieces of equipment at a price of $860,601.

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The contract provided that there was a 3-month guarantee period, during which the plaintiff agreed to replace any parts which proved to be unsuitable, owing to had workmanship etc. There does not seem to have been any report of unsuitability by the defendant to the plaintiff during the guarantee period (or indeed at all until after the service of the plaintiff's writ on the defendant).

The plaintiff shipped the equipment from Singapore to Brunei Darussalam in December, 1994. A down payment by the defendant, of $300,000, was made on 25th November, 1994; three further part payments were made by the defendant on 11th and 15th January, 1995, and 16th March, 1995. There has been no payment since the last date by the defendant to the plaintiff.

A letter was sent to the defendant by the plaintiff's solicitors on 8th December, 1995, asking for payment of the outstanding balance due from the defendant to the plaintiff of $446,800.

I reply, the defendant thanked the plaintiff for its patience, saying "your patience is much needed to settle the issue. Please bear with us".

On 10th January, 1996 a further agreement was signed by Mr Derrick Ong, on behalf of the plaintiff, and Mr Malai Taufik bin Malai Mashhor ("Mr Malai") on behalf of the defendant. This agreement provided for the payment of the outstanding sum of $446,800 in four instalments by the defendant, in January, March and April, 1996.

Nowhere in this agreement is there any suggestion that some of the equipment, supplied over a year before by the plaintiff, was in any way unsatisfactory. None of these instalments was paid.

A FAX was sent on 23rd January, 1996 from Mr Malai, suggesting the rescheduling of payments.

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In reply, the agreement was varied, by a FAX, dated 23rd January, 1996, from Mr