GROUNDS OF DECISION

This is an application for a summary judgment under 0.14 r.1 and 0.27 r.3 of the Rules of High Court (hereinafter called the “RHC“) for a sum of RM1.15 million with interest at 8% per annum and costs. The plaintiff and the 2nd defendant are brothers, and the 1st defendant is a family friend cum lawyer for the family business, Aurora Hotel Kuching. In 1990 the plaintiff had given loans to the defendants at various times and in various sums, which loans totalled RM1.15 million. However, there was no documentation. The money RM1.15 million was paid to and received by the defendants, vide the receipt or acknowledgment dated 10th March, 1992 - Exh. BM1. As no payment towards the loans had ever been made, the plaintiff served the defendants with a notice of demand, and there had been no response whatsoever, hence the plaintiff brought this action.

The application is supported by four affidavits of the plaintiff -

(1)The affidavit of Haji Bidari Tan Sri Datuk Mohammad affirmed on the 30th April, 1996;

(2)The affidavit in reply of Haji Bidari Tan Sri Datuk Mohamad affirmed on the 11th June, 1996;

(3)The supplementary affidavit of Haji Bidari Tan Sri Datuk Mohamad affirmed on the 24th June, 1996; and

(4)The affidavit in reply of Haji Bidari Tan Sri Datuk Mohamad affirmed on the 24th June, 1996.

The application is opposed by three affidavits of the 2nd defendant -

(1)The affidavit of Masri Tan Sri Datuk Mohammad affirmed on the 30th May 1996;

(2)The affidavit in reply of Masri Tan Sri Datuk Mohammad affirmed on the 24th June 1996; and

(3)The Supplementary and Further affidavit in Reply of Masri Tan Sri Datuk Mohammad affirmed on the 5th July, 1996.

The Writ of Summons dated 17th February, 1995 together with the plaintiff’s Statement of Claim were served on both defendants on 2nd March, 1995 and the defendants’Defence dated 23rd March, 1995. The statement of claim was amended on 15th December, 1995. The Defence was twice amended, and the re-amended Defence was served on the plaintiff on the 7th March, 1996.

At the onset of the hearing the counsel for the defendants applied for an adjournment in order to file an application for leave to amend the re-amended Statement of Defence. When asked if the application had been filed, he answered in the negative. The court refused the application for adjournment because first, the defendants had ample time within which to do so, and secondly, it appeared that this was a manoeuvering tactic employed, to delay the proceedings. When the application for an adjournment of the hearing was refused, that left Mr. Andrew Kaya flat footed which gave the impression to the court that he had not prepared his case. Learned counsel for the plaintiff submitted a written submission in respect of the case.

The spirit and intendment of 0.14 Rules of High Court have been clearly explained in numerous cases, notably, the locus classicus, - Jacobs v. Booth’s Distillery(1901) LXXV LT 262 which explained 0.14 in the words of Halsbury L.C.:

“People do not seem to understand that the effect of Order XIV is that, upon the allegation of the one side or the other, a man is not permitted to defend himself in court; that his rights not to be litigated at all. There are some things too plain for argument; and where there were pleas put in simply for the purpose of delay, which only added to the expense, and where it was not in aid of justice that such things should continue, Order XIV was intended to put an end to that state of things, and to prevent sham defences from defeating the rights of parties by delay, and at the same time causing great loss to plaintiffs who were endeavouring to enforce their rights.“

In Contract Discount Corporation Ltd. v. Furlong & Ors.(1948) 1 ALL ER 274, Lord Greene, M.R. at page 276, said:

“Had it been what I may call a clean admission: “We admit that £10,000 is owing but we dispute the balance,“ the order of the judge, I should have thought, would have been perfectly proper. I do not accept the