JUDGMENT

(Enclosure 8)

Muhammad Noor Firdaus Rosli M:

()

[1] Enclosure 8 is the plaintiff's application for a summary judgment.

Facts Of The Case

[2] Lee Chin Hock, the defendant ("the defendant") and Masem Resources Sdn Bhd the plaintiff ("the plaintiff"), via two agreements entered into on 3 December 2019, had agreed that the defendant appointed the plaintiff to supply materials and carry out works in relation to two projects: one at Salak Interchange (Southbound) ("1st Project") and the other at Duke Phase 3 s 4 - Setiawangsa to Melati ("2nd Project").

[3] These works emanated from the fact that the defendant was appointed as a contractor by DBM Engineering Sdn Bhd ("DBM") pursuant to an agreement ("Main Contract") for the two aforesaid projects.

[4] The plaintiff averred that it had fulfilled all of its contractual duties and issued three bills of quantities dated 27 December 2019, 30 December 2019 and 24 January 2020 to the defendant, demanding payment of RM47,589.52.

[5] On 15 June 2020, the defendant paid RM5000, leaving a balance of RM42,859.52.

[6] The plaintiff had sent continuous demands to the defendant seeking the payment for the balance sum.

[7] The plaintiff averred that correspondences took place between Mamunoor Rashid, the plaintiff's project manager with the defendant, and one Ady Ibrahim, a supervisor acting on behalf of the defendant, regarding the payment of the balance sum. The conversation took place between 4 February 2020 and 15 May 2020. Yet, the payment was not forthcoming.

[8] On 25 August 2020, the plaintiff's solicitor, Messr. T Rajagopalu issued a letter of demand to the defendant, demanding payment of RM42,589.52.

[9] On 5 September 2020, the plaintiff was served with a copy letter of termination issued by the defendant dated 23 January 2020. The letter stated that the Main Contract between the defendant and DBM was terminated via a notice dated 21 January 2019; thus, the contract between the defendant and plaintiff, entered into on 3 December 2019, inevitably must follow suit.

[10] The letter also claimed that the termination was a result of a breach of performance as well as quality, and failure to provide adequate skilled workers or the necessary tools to make timely progress of the project. It was also stated that the issues were repeatedly conveyed to the plaintiff, yet there was no action taken to remedy the situation.

[11] Another letter of demand dated 8 September 2020 was sent by the plaintiff's solicitor to the defendant, claiming exactly the same sum of RM42,859.52 with a remark that the service of the letter of termination dated 23 January 2020 on 5 September 2020 was an injustice to its client.

[12] The plaintiff commenced this action and hence, this application for summary judgment.

Submission By The Plaintiff

[13] The plaintiff submitted that it had carried out its obligation pursuant to the two agreements, and the defendant who had the benefit out of it, ought to make the payment.

[14] It was also submitted that the production of the letter of termination dated 23 January 2020 on 5 September 2020 was an afterthought.

Submission By The Defendant

[15] The defendant, in his defence and affidavit in reply (enclosure 10), stated that the works done by the plaintiff were defective.

[16] Notices were issued by the defendant to the plaintiff pertaining to the defects, yet the plaintiff had failed to remedy those defects, which led to the termination of the main contract between the defendant and DBM.

[17] In remedying those defects, the defendant had suffered loss, and the biggest loss was losing the contract with DBM.

[18] The defendant, in his submission, put forward ten issues that could only be resolved in a trial, as follows:

i) Whether the plaintiff had fulfilled its obligation pursuant to the agreements.

ii) Whether the defendant had served notices to the plaintiff pointing to the plaintiff its failure to fulfil its obligation.

iii) Whether the plaintiff had taken any step to remedy the defects.

iv) Whether