JUDGMENT

I. APPEAL

This is an appeal in encl. (59) by the appellant-defendant ("the defendant") against the decision of the learned registrar who had on 11 November 2003 given summary judgment under O.14 of the Rules of the High Court 1980 ("O.14") in favour of the plaintiff in the sum of RM394,666.59 as at 31 May 1999 with contractual interest at the rate of 22%

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p.a. calculated on a daily basis from 1 June 1999 until realisation on the principal sum of RM301,217.63 and costs on a solicitors-client basis.

II. FACTUAL BACKGROUND

Pursuant to the defendant's documented application to the plaintiff on 27 February 1997, the plaintiff opened a share transaction account No. F 0148 with a credit facility of RM5 million for the defendant who had embarked on share transactions and incurred losses, as a result of which on 27 July 1998, the plaintiff issued a notice of demand to the defendant at No. 35, Jalan USJ 11/3D, UEP Subang Jaya ("the Subang Jaya address") given by the defendant to the plaintiff in the application form in which the defendant has agreed to give plaintiff notice of change of the Subang Jaya address in the event of a change. The defendant did not give the plaintiff any notice of change of address. This letter of demand was followed by the letter of demand

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issued by the plaintiffs solicitors to the defendant. There was no response by the defendant to these notices of demand.

The defendant vide his own letter dated 9 September 1998 to the plaintiffs chief executive officer confirmed that he was "fully aware of the total outstanding contra losses of amount RM301,217.63 owing to Kimara" i.e. the plaintiffs former name and would be doing his "very best to settle the full sum mentioned above together with all interest charged."

III. FRAUD

It was submitted by Mr. Edward CF Chin learned counsel for the defendant that the defendant has raised the issue of fraud perpetrated by a remisier who is said to be the plaintiffs agent, in collusion with the plaintiff's chief executive officer, for which the defendant has on 11 June 2001 lodged a police

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report, wherein he stated that his monthly salary as a medical salesman was RM3,500 while the line of credit was RM5 million. He added that all contract notes were sent to the Subang Jaya address. Wong Kah Seng who is the third party herein shares the Subang Jaya address.

Reliance was placed on O.14 r2(l)(b); Societe Des Etains De Bayas Tudjuh v Woh Heng Mining Kongsi [1978] 2 MLJ 267 HC; Ng Hee Thoong & Anor v Public Bank Bhd [1995] 1 MLJ 281 CA; Syn Lee & Co Ltd v Bank of China [1961] MLJ 87; and Malayan Insurance (M) Sdn Bhd v Asia Hotel Sdn Bhd [1987] 2 MLJ 183 to support the defendant's contention that there are triable issues by reason of the said allegation of fraud.

Mr. John Wong Yok Hon, learned counsel for the plaintiff, contended that the issue of fraud raised for the defendant was against contemporary

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documents executed by the defendant and that the third party herein was not the employee of the plaintiff.

On my part, in relation to an application for summary judgment under O.14, it is instructive to apply the dictum of Mohamed Azmi SCJ (as he then was) in Bank Negara Malaysia v Mohd Ismail [1992] 1 MLJ 400 when his Lordship in delivering the majority judgment of the then Supreme Court said at p.408 E-F as follows :

"Under an O14 application, the duty of a judge does not end as soon as a fact is asserted by one party, and denied or disputed by the other in an affidavit. Where such assertion, denial or dispute is equivocal, or lacking in precision or is inconsistent with undisputed contemporary documents or other statements by the same deponent, or is inherently improbable itself, then the judge has a duty to reject such assertion or denial, thereby rendering the issue not triable."

[ Emphasis added ]

I must now consider the assertion etc. advanced for the defendant.

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First, the so-called O.14 r2(l)(b) which the defendant has relied upon in order to support his content