A claim for the price of goods sold is time-barred under Items 22 and 23 of the Limitation Ordinance if a continuous credit account cannot be established.

JUDGMENT

Christopher Chin Soo Yin JC:

(Other Than A Decision Made After Trial)

(Order 55 Rule 5 Rules Of 2012)

[1] The Appellant/Plaintiff is appealing against the decision of the Sessions Court delivered on the 25 January 2021. In the Sessions Court, upon the application of the Respondent/Defendant, the Plaintiff's Statement of Claim dated 11 December 2019 was struck off with costs.

[2] The Appellant was the Plaintiff in the suit below and the Respondent, the Defendant.

The Appellant's Claim In Substance

[3] The Appellant alleges that over 2013 and 2017 the Respondent had ordered square building foundation piles from the Appellant on the expressed or implied term that interest at the rate of 1.5% per month will be imposed for any overdue account.

[4] The Appellant further alleges that there was a continuing credit account existing between the parties.

[5] It is alleged that the Appellant, in breach of such arrangement the Defendant failed and/or refused to pay for the piles leaving a balance of RM326,068.60 and accrued interest of RM246,024.36.

[6] The last payment made by the Defendant was on the 16 April 2014.

[7] Wherefore the Appellant claimed the sum of RM572,092.96 plus interest at the rate of 1.5% per month until settlement, and, costs.

The Statement of Defence Of The Respondent/ Defendant

[8] In essence the Respondent says:

(a) They concede purchasing piles from the Respondent;

(b) Denies the existence of any "continuing credit account";

(c) Payment to the Appellant for the piles were made by the Respondent upon delivery or within a 30 day credit period from the date of invoices;

(d) Denies any agreement for the payment of the monthly interest;

(e) Admitted paying the sum of RM81,150 n the 5 October 2013 and the sum of RM277,050 on the 16 April 2014 and that there are no further sums owing by the respondent to the Appellant;

(f) That the alleged claim of the Appellant of RM572,092.96 was in any event time barred by virtue of Item 22, item 23 and item 44 of the Schedule to the Sarawak Limitation Ordinance (Cap 49) 1958.

(g) The Respondent had never made any acknowledgement of the alleged debt so as to revive or enlarge the limitation period for the Appellant's claim;

(h) Finally, the Appellant's Statement of claim is clearly time barred and therefore discloses no reasonable cause of action.

Reply By The Appellant

[9] In reply the Appellant avers, that there was a continuing credit account between the parties and that the interest of 1.5% was a well-established and well accepted common market practice. Hence the stated provisions of the Limitation Ordinance do not apply.

Order 18 Rule 19 By The Respondent

[10] The Respondent then applied in the Sessions Court to strike out the Statement of Claim of the Appellant under O 18 r 19 of the Rules of 2012 as it disclosed no reasonable cause of action and is therefore scandalous, frivolous or vexatious and an abuse of the process of the Court.

[11] The Learned Sessions Court Judge ruled in favour of the Respondent and struck out the Appellant's Statement of Claim on the 25 January 2021.

Order 55 Rules Of 2012

[12] Order 55 r 2 of the Rules of (RoC) 2012 provides, among other things, that all appeals to the High Court shall be by way of re-hearing. The High Court in exercising its appellate jurisdiction, may consider the case afresh without reference to the reasons and written grounds of the lower Court judge. It is considered as if the case is coming before this Court for the first time.

[13] This is reinforced by s 29 of the Courts of Judicature Act 1964:

"All civil appeals from a subordinate Court shall be by way of a re-hearing, and the High Court shall have like powers and jurisdiction on the hearing of appeals as the Court of Appeal has on hearing of appeals from the High Court. "

[14] In a re-hearing the High Court judge would consider the case afresh without reference to the reasons or written grounds of the lower Court judge. In a re-hearing, a judge is not tasked to consider whether the lower