Low Hop Bing J:

Appeals

The defendants have filed two notices of appeal against two orders of the learned registrar made on 29 November 2002:

1. allowing plaintiff's application for summary judgment in encl. (31); and

2. dismissing defendant's application to strike out the plaintiff's writ and statement of claim under O. 18 r. 19(d) of the Rules of the High Court 1980, in encl. (33).

Factual Background

The plaintiff's claim against the first defendant is for the sum of RM422,083.13 as at 30 April 2002, being the balance of the purchase price for electrical goods ("the goods") sold and delivered to the first defendant, and against the second defendant as a guarantor for the same amount, on the basis of the guarantee executed by the defendants on 1 November 1999 in favour of the plaintiff.

The first defendant has a running account with the plaintiff until this action was filed.

As at 31 January 2002, the first defendant was indebted to the plaintiff in the sum of RM403,440 for which the first defendant gave the plaintiff a cheque of the same date, signed by the second defendant and another person by way of settlement thereof. However upon presentation for payment, the cheque was dishonoured on ground of "stop payment".

The first defendant then issued to the plaintiff three cheques, one dated 22 March 2002 while the other two were dated 29 March 2002, for the sum of RM88,360 each towards part payment of his debt to the plaintiff, but two of them were also returned on the same ground.

The first defendant also additionally issued three undated cheques to the plaintiff, amounting to RM77,241.68 each towards part payment of the debt to the plaintiff but the plaintiff did not present them for payment.

The final account of the first defendant with the plaintiff as at 28 February 2002 showed a debt of RM408,788.55 and late payment charges of RM13,294.58, thereby amounting to RM422,083.13.

The first defendant vide letter, dated 30 March 2002 signed by the second defendant and addressed to the plaintiff, requested to make repayment of the outstanding sum of RM408,788.55 as at 28 February 2002 by way of each monthly payment at 8% thereof for 11 months from April 2002 to February 2003 and the balance of 12% in March 2003.

The defendants' solicitors vide letter dated 22 April 2002 requested the plaintiff to "stop the banking in of the cheque" for RM88,360 dated 19 March 2002, but made no payments as requested in the letter dated 30 March 2002, as a result of which, on 30 April 2002, the plaintiff's solicitors issued a notice of demand together with all supporting documents as requested by the first defendant's solicitors, claiming from the first defendant as principal debtor the sum of RM422,083.13, to be paid within seven days therefrom.

Also on 30 April 2002, the plaintiffs solicitors sent a similar letter of demand claiming the same amount from the second defendant as the guarantor.

On 16 May 2002, the plaintiff's solicitors received an undated letter "BY FAX/POST" from the defendants' solicitors to the effect that "Our instructions are to deny the content of your letter. We shall strongly resists (sic) all forms of action your clients intend to take against our client".

On 22 May 2002, the plaintiff filed this suit against the defendants.

Summary Judgment

En J Shamsesh, learned counsel for the defendants, submitted that the plaintiff has failed to deliver the goods to the first defendant and that there was discrepancy in the amount claimed by the plaintiff.

He added that the late payment charges were unilaterally imposed by the plaintiff.

In respect of the guarantee, it was argued that one of the guarantors was the first defendant himself and the guarantee is not legally sustainable as the first defendant is a firm, and that there was no letter of demand.

It was then said that the plaintiff's counsel has no locus standi to act for the plaintiff.

En Mogan Karupiah, learned counsel for the plaintiff, submitted that there was an ad