Raja Azlan Shah J:

This is an application for summary judgment under RSC O. 14. The plaintiffs claim a sum of $704,762.51 against the defendants for the sale and supply of turbo fuel to their aircraft, Boeing 707, Registration No. 9M-AQD at various airports - Nairobi, Plaisance, Zaventem, Gatwick, Subang, Karachi, Essanboga, Luxemburg, Bangkok and Athens - for the period between June 1971 and September 1971. The particulars are annexed to the statement of claim which was filed on 25 November 1971.

On the same day the plaintiffs applied for and obtained an order of attachment before judgment against the said aircraft. The said order was set aside on 27 November 1971. This now forms the subject matter of a counterclaim for defamation against the plaintiffs.

The defendants filed their statement of defence on 8 December 1971. Save that the supply of fuel is admitted, the defendants deny all liabilities. The forefront of their defence is that they agreed to accept the supply of fuel by the plaintiffs upon their promise and undertaking that the price thereof ab initio would be fixed and adjusted when a formal contract is executed. They say that on the faith of that arrangement they had paid a total of $325,732.56 and that that sum was now in excess of payments due to the plaintiffs for which they are entitled to be given proper credit. In short, the defendants now say that they are liable only to pay at the price to be fixed when a contract came to be made and executed on or about two weeks from then. In other words, the present arrangement was only on a temporary basis until the price was fixed and embodied in a formal contract. Since June 1971 the defendants had requested the plaintiffs to finalise the said formal contract so that the price of fuel supplied and to be supplied might be agreed and fixed, thereby enabling the defendants to pay cash at the reduced fixed rate and to be credited the amount of overpayment already made.

On 9 December 1971 the plaintiffs filed an application for summary judgment. This is supported by the affidavit sworn by Enche Zulkifli Mohd Isahak, the plaintiffs' National Accounts Representative on 8 December 1971. On 13 December 1971 the plaintiffs filed another application for an order to strike out the defendants' counterclaim under RSC O. 21 r. 15. The defendants put in two affidavits in reply. One was from Mr. N.S. Mansfield, the project adviser and the other was from Mr. Carl James Wheatley, the director of operations.

Before I consider the merits of the two applications it is imperative to ascertain the arrangement arrived at between the parties. This consists of three letters and five credit cards (International Aviation Carnet Credit Cards). The first letter dated 29 June 1971, reads as follows:

29 June 1971

Our ref: 56A RK Southern Cross Airways (M) Bhd, Eighth Floor, Wisma Damansara, Kuala Lumpur.

International Aviation

Carnet No. ESMB-71-C-1

Attention: Mr. Mansfield

Gentlemen,

Further to our discussion on 26 June 1971, we enclose herewith an International Aviation Carnet No ESMB-71-C-1 valid for the period 1 July 1971 to 31 July 1971.

Payment for fuel filled in all locations is due within ten days from date of invoice. Payment can be made in Malaysian Dollars converted from the US Dollar price on date of payment at the official telegraphic transfer selling rate for US Dollars quoted by the Association of Banks in Malaysia.

We will be calling on you again in due course to finalise a yearly contract with you based on contract terms. Meanwhile if we can be of further service to you, please let us know.

Very truly yours,

(Cheong Kun Ming)

Industrial Trade Manager.

The second letter dated 29 July 1971 is in the following terms: "29 July 1971

In reply please refer to:

56A ZMI Southern Cross Airways (M) Bhd.,

Eigth Floor, Wisma Damansara,

Jalan Semantan,

Kuala Lumpur. Carnet No ESMB-71-C-2

Attention: Mr. Mansfield

Gentlemen,

Enclosed herewith please find Carnet No.