JUDGMENT

Abdul Malik Ishak J:

To The Heart Of The Matter

This is the defendant's appeal by way of encl. 33 against the order of the learned senior assistant registrar ("SAR") dated 4 April 2003 wherein the learned SAR, inter alia, entered judgment against the defendant pursuant to O. 27 r. 3 of the Rules of the High Court 1980 ("RHC") for the sum of RM151,361.98 after hearing encl. 21 on the merits. The plaintiff's application in encl. 21 is for judgment to be entered against the defendant under O. 27 r. 3 of the RHC on the amount of RM151,361.98 which was admitted by the defendant in their defence in respect of goods sold and invoiced to the defendant but not fully paid for. Order 27 r. 3 of the RHC states as follows:

Judgment on admission of facts.

(O. 27, r. 3).

3. Where admissions of fact are made by a party to a cause or matter either by his pleadings or otherwise, any other party to the cause or matter may apply to the Court for such judgment or order as upon those admissions he may be entitled to, without waiting for the determination of any other question between the parties, and the Court may give such judgment, or make such order, on the application as it thinks just. An application for an order under this rule may be made by summons.

And such admissions of fact may either be express or implied and they must also be clear and explicit (Ellis v. Allen[1914] 1 Ch. 904 at p. 909; Ash v. Hutchinson & Co. (Publishers)[1936] Ch. 489 at p. 503; Technistudy v. Kelland[1976] 1 WLR 1042, [1976] 3 All ER 632, CA; Barnard v. Wieland[1882] 30 WR 947; and Smith v. Davies[1884] 28 Ch. D 650). Such admissions too may be made expressly:

(i) in a defence; or

(ii) in a defence to a counterclaim; or

(iii) they may be admissions in a situation where the defendant fails to traverse an allegation of fact in the statement of claim; or

(iv) there is a default of defence; or

(v) where the defence is struck out and so the allegations of fact in the statement of claim are deemed to be admitted.

The following authorities must be referred to as they are certainly of great utility in construing O. 27 r. 3 of the RHC:

(a) Gillott v. Ker[1876] 24 WR 428;

(b) Caroli v. Hirst[1883] 31 WR 839; and

(c) Mackellar v. Hornsey[1901] 49 WR 301.

Now, it must be emphasised that the grounds for the plaintiff's application are stated in Yip Wan Kai's affidavit in support that was affirmed on 14 March 2002 as seen in encl. 22. Unfortunately, the defendant did not file any affidavit in reply at all.

Another pertinent point to note would be this. That para. 4(b) of the statement of claim sets out the liability of the defendant for the sum of RM151,361.98 in the following fashion:

4. The Defendant had breached and/or repudiated the said Agreement as follows:

(b) Apart from the above, the Defendant had improperly and wrongfully without the consent of the Plaintiff deducted a sum of RM151,361.98 from the amount due for Invoice KLG 99-6 dated 30.6.1999 on the alleged basis that the purity of the Soda Ash supplied for June 1999 was below 99.2% Na2Co3.

The deduction was improper and invalid because:

(i) The Certificate Of Analysis Report prepared by SGS Laboratory Services (M) Sdn Bhd (hereinafter referred to as 'SGS') dated 6.5.1999 and rendered to the Defendant videa letter from the Plaintiff dated 8.6.1999 confirmed that the purity of the Soda Ash supplied was above 99.2%; and

(ii) The Defendant is also estopped from denying the Certificate Of Analysis Report by SGS because the Defendant failed to give any notice in writing to the Plaintiff in accordance with Clause 10 of the said Agreement no later than 7 days from the delivery of the Soda Ash and to tender a report within 1 month thereafter.

And by way of para. 4 of the statement of defence, the defendant categorically states:

4. Paragraph 4(b) of the Statement of Claim is not denied.

In plain English, by way of para. 4 of the statement of defence, the defendant has admitted to the plaintiff's claim for the amount in arrears to the tune of R