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2025 MarsdenLR 1907
HIGH COURT MALAYA KUALA LUMPUR
EMUM CAPITAL SDN BHD – Appellant
Versus
GREAT CONCRETE & ORS – Respondent
[Suit No: WA-22NCC-573-08/2024]
Plaintiff entitled to summary judgment based on undisputed delivery of goods; Defendants failed to raise valid defenses or counterclaims.
Headnote:(A) Rules of Court 2012 - Order 14 and Order 18 - Summary judgment application - Plaintiff successfully established entitlement to summary judgment for RM1,307,291.00 based on undisputed deliveries and acknowledgment of debts. Defendants' counterclaim for damages and waiver of interest dismissed as unsustainable. (Para 82)
(B) Legal tests for summary judgment and striking out applications highlighted. (Paras 22, 64)
(C) Evidence of breach and waiver disputes addressed, with court ruling no triable issues from Defendants. (Para 84)
Facts of the case:
The Plaintiff provided credit facilities to the 1st Defendant for construction materials, leading to a dispute over unpaid debts and a counterclaim from Defendants alleging breach and damages. (Paras 4-12)
Findings of Court:
The Plaintiff's claims were validated by documented acknowledgments from Defendants, and counterclaims lacked legitimate basis per established agreements. (Paras 28, 76)
Issues: Whether the Plaintiff breached the credit facility terms, existence of triable issues, validity of the Defendants' counterclaims. (Paras 14, 22)
Ratio Decidendi: The court ruled that established contractual terms justified the Plaintiff's actions; adequacy of the Plaintiff's claims and the absence of proof supporting the Defendants' allegations of breach or damages were critical. (Paras 29, 76)
Result: Summary judgment granted to the Plaintiff; Defendants' counterclaim struck out.
| Table of Content |
|---|
| 1. establishment of factual background (Para 1 , 3 , 4 , 5 , 6 , 7 , 8 , 9 , 10 , 11 , 12) |
| 2. plaintiff's claims against defendants (Para 13 , 14 , 15 , 16 , 17 , 18) |
| 3. plaintiff's application under o 14 (Para 20 , 21) |
| 4. legal principles for summary judgment (Para 22 , 23 , 24) |
| 5. defendants' triable issues (Para 25 , 26 , 27) |
| 6. breach of agreement by plaintiff (Para 28 , 29 , 30 , 31 , 32 , 33) |
| 7. waiver of credit term and late interest (Para 34 , 35 , 36 , 37 , 38 , 39 , 40 , 41 , 42) |
| 8. discrepancies in delivery orders (Para 43 , 44 , 45 , 46 , 47 , 48 , 49 , 50) |
| 9. validity of letter of guarantee (Para 51 , 52 , 53 , 54 , 55 , 56) |
| 10. non-query of account stated (Para 57 , 58 , 59) |
| 11. ruling on summary judgment application (Para 61 , 62 , 63) |
| 12. legal test for striking out counterclaim (Para 64 , 65 , 66 , 67) |
| 13. defendants' damages for higher prices (Para 68 , 69 , 70 , 71 , 72) |
| 14. general damages for reporting to credit agencies (Para 73 , 74 , 75 , 76 , 77 , 78) |
| 15. final orders by the court (Para 79 , 80 , 81 , 82 , 83) |
(Enclosure 12 And Enclosure 13)
Introduction
[1] Before the court is the Plaintiff's application for summary judgment under O 14 Rules of court 2012 against the Defendants (Enclosure 12), as well as the Plaintiff's application under O 18 r 19(1)(b), (c) and/or (d) Rules of court 2012 to strike out the Defendants' counterclaim (Enclosure 13).
[2] Having considered the written submissions, affidavits, and oral arguments presented by both parties, I am of the view that both applications must be allowed. My grounds of judgment are as follows.
Background Facts
[3] The Plaintiff, Emum Capital Sdn Bhd, is a trading company in building materials. The 1st Defendant, Great Concrete Sdn Bhd, is a customer of the Plaintiff.
[4] On or around 1 November 2018, the 1st Defendant applied for credit facility from the Plaintiff through a Credit Facility Application Form. In this form, the 1st Defendant's directors executed a Declaration agreeing, among others, to the following terms:
a) To settle all debts within the Credit Term from the dates of each delivery of goods;
b) To pay interest at the rate of 1.5% per month on all outstanding amounts due and payable to the Plaintiff, in the event of failure to pay within the credit period; and
c) That the Plaintiff shall cease to supply the goods on credit terms until all amounts due have been paid, if the 1st Defendant fails to settle any amount due within 30 days after the amount has become due.
[5] Subsequently, by letter dated 20 February 2019, the Plaintiff approved the 1st Defendant's Credit Facility Application with a credit term of 60 days and a credit limit of RM2,000,000.00. The letter also specified that interest at the rate of 1.5% per month would be charged on arrears in payment from the due date to the date of full settlement (both before and after judgment), and that the Plaintiff reserves the right to amend, suspend or revoke the credit limit and terms without prior notice.
[6] On 1 November 2018, the 2nd and 3rd Defendants executed a Letter of Guarantee in favour of the Plaintiff. Through this Guarantee Letter, the 2nd and 3rd Defendants jointly and severally guaranteed, as principal debtors, the repayment of all monies and liabilities owed to the Plaintiff by the 1st Defendant, including interest until the date of payment.
[7] Pursuant to the Credit Facility, the 1st Defendant placed orders for bulk cement with the Plaintiff, which the Plaintiff duly supplied and delivered to the 1st Defendant. For each delivery, the 1st Defendant acknowledged receipt via the relevant delivery orders, and the Plaintiff subsequently issued invoices for payment. The invoices clearly stated that the payment term was 60 days and that interest of 1.5% per month would be charged on all overdue accounts.
[8] Despite several demands and reminders, the Defendants failed to fully settle the outstanding amounts owed to the Plaintiff. The last partial payme
