Summary judgment can be granted when the plaintiff fails to demonstrate a triable defense, especially where contractual documents are unambiguous and obligations clearly defined.

JUDGMENT

Evrol Mariette Peters JC:

Introduction

[1] This was the 4th defendant's application ("this application") in encl 33 for summary judgment pursuant to O 14 of the Rules of 2012 ("Rules of ") for its counterclaim against the plaintiff, for the sum of RM213,730.50.

The Background Facts

[2] The plaintiff is an individual, whilst the 1st defendant, the Chief Minister of Johor at the material time, had officiated and launched a programme known as JohorMart ("the programme") on 25 April 2015. The plaintiff participated in the programme by entering into an Operator Agreement with the 3rd defendant. The 4th defendant, Majlis Amanah Rakyat ("MARA") vide a letter ("Surat Tawaran Pembiayaan Perniagaan MARA") dated 13 April 2016, offered the plaintiff a Bai Al Inah financing facility ("the facility") in the amount of RM200,000, for the purpose of the plaintiff's participation in the programme. The facility was accepted by the plaintiff.

[3] The plaintiff's JohorMart grocery store, under the programme, was finally opened on 1 April 2017, but due to certain challenges, she suffered losses. As a result thereof, the plaintiff eventually issued a letter to the Perbadanan Usahawan Johor Sdn Bhd (a shareholder of the 3rd defendant), to surrender the JohorMart grocery store.

[4] On 12 February 2020, the plaintiff instituted an action against the defendants for damages for the failure of her business, claiming, inter alia, that the 4th defendant had not only misrepresented, but had failed to conduct a feasibility study of the potential risks to the business, and had wrongfully disbursed the money under the facility to the 3rd defendant. Since the plaintiff had defaulted on the facility, the 4th defendant filed a counterclaim, and on 11 September 2020, filed this application, which was allowed for the following reasons.

The Applicable Law

[5] It is trite law as stated in several cases including National Company For Foreign Trade v. Kayu Raya Sdn Bhd , 1984 MarsdenLR 58 , that the Court may order summary judgment only in plain and obvious cases.

[6] The burden is on the plaintiff in this case, to satisfy the Court why judgment should not be given against her in the counterclaim: per George Seah FJ in National Company For National Company For Foreign Trade v. Kayu Raya Sdn Bhd , 1984 MarsdenLR 58 , which has been followed in a plethora of cases including Cempaka Finance Bhd v. Ho Lai Ying & Anor; [2006] 2 MLJ 685; [2006] 3 CLJ 544.

[7] It is pertinent to note that the issue that had to be addressed was whether the plaintiff had a triable defence to the counterclaim. "This simply means that it is for the plaintiff to show on merits, she has a good defence to the counterclaim, or that a difficult point of law is involved, or the dispute is as to the fact which is to be tried or any other circumstances showing reasonable grounds of a bona fide defence" per Mohamed Dzaiddin J in Syarikat Kerjasama Serbaguna Tunas Muda Sungai Ara v. Ghazali Bin Ibrahim , 1985 MarsdenLR 792 .

Contentions, Evaluation, and Findings

Whether The 4th Defendant Was Negligent In Ensuring The Proper Management Of The Programme?

[8] The plaintiff averred that there was a Memorandum of Understanding ("MOU") (exhibited as A2 to the Affidavit-In-Reply affirmed by the plaintiff on 1 October 2020), and pursuant thereto, the 4th defendant assumed the duty and obligation to conduct a feasibility study of the potential risks to the business that the plaintiff had embarked on

[9] I found the plaintif's argument untenable in view of the fact that the MOU, which was between the plaintiff and the 3rd defendant, was prepared not by the 4th defendant, but by the 3rd defendant and merely copied to the 4th defendant. Furthermore, there was no requirement in the MOU or any document whatsoever for a feasibility study to be conducted.

[10] Secondly, the plaintiff on her own volition, and without any encouragement whatsoever from the 4th defendant, had accepted the facility, in the absence of any factors,