Clear and unequivocal admissions are necessary for summary judgment under Order 27 Rule 3; ambiguous statements do not suffice.

Hanipah Farikullah JCA:

Introduction

[1] This is an appeal from the decision of the Judicial Commissioner (JC) given on 3 January 2019 by which the learned JC allowed the respondent's (plaintiff) claim against the appellants (defendants).

[2] This appeal requires the court to examine and interpret the provision of O 27 r 3 Rules of 2012 ( ROC 2012) more particularly. The issue to be determined in this appeal is whether an admission made by the appellant to a third party can secure a final judgment for the plaintiff's claim.

[3] The application before the High court was made pursuant to O 27 r 3 of ROC 2012. The plaintiff sought the entry of a judgment against the defendant for an outstanding sum of RM1,002,537.38 for the goods sold and delivered by the plaintiff.

[4] We heard the appeal on 6 August 2019 and at the conclusion of the submissions, we unanimously dismissed the appeal. Being dissatisfied with our decision, the plaintiff appealed against our decision.

Background Facts

[5] The facts are set out in detail in the judgment of the learned JC. There is no need for us to repeat them except as necessary for the purpose of discussion.

[6] On 29 December 2017, the plaintiff filed a writ of summons and statement of claim against the defendants claiming the arrears in payment amounting to RM1,002,537.38.

[7] The plaintiff was the supplier of goods to the first defendant and the plaintiff is claiming arrears on the basis that the second defendant had signed a Declaration and a Guarantee Letter dated 26 April 2016.

[8] The statement of claims averred that:

a) The first defendant and the third party had entered into a subcontract agreement whereby the first defendant would do some work in the project known as "Kerja Kerja Tebatan Banjir dari Kg Terengganu ke TCG T10-J, Jalan Woo Saik Hong, Teluk Intan, Perak."

b) The plaintiff had been appointed by the first defendant to supply the material pursuant to the said project.

c) The subcontract agreement between the third party and the first defendant was later terminated.

d) The third party and the first defendant had entered into "Perjanjian Penyelesaian", a settlement agreement referred to us.

e) Out of the sum of RM2,500,000.00, it is expressly stated that the first defendant, apart from payments being made directly to certain individuals, had also instructed a sum of RM1,500,000.00 be paid directly, on the first defendant's behalf, to the plaintiff. The method of payment was to be by way of 15 cheques, 3 of which were stated in the plaintiff's statement of claim as having been paid to the plaintiff toward the plaintiff's claim against the first defendant. From the list of 15 cheques stated, the cheques numbered MBB no 251708, 251709, and 251710, had been used to make part payment to the plaintiff.

[9] Prior to the filing of the statement of defence, the defendants have filed a Third Party Notice pursuant to O 16 r 1(2) ROC 2012 against JJM Integrated Sdn Bhd to include JJM Integrated Sdn Bhd as a third party to indemnify the defendants against their liability to the plaintiff in his claim.

[10] The third party had made an application to amend their statement of defence in encl 39 to include a document known as Perjanjian Bersama dated 30 January 2018 ("the document") which was alleged to have been entered by the third party and the first defendant.

[11] On 25 September 2018, the plaintiff had filed a Notice of Application for a judgment or order on admission of facts under O 27 r 3(1) and (2) ROC 2012 based on the third party's documents on the ground that the appellants had acknowledged the debt owed to the plaintiff.

[12] The application in encl 48 was made by the plaintiff after the Third Party had informed the plaintiff that the Third Party had filed an affidavit incorporating the agreements between the defendants and the Third Party.

[13] Enclosure 48 was based on Perjanjian Penyelesaian dated 1 February 2017 and Perjanjian Bersama dated 30 January 2018 which was marked as exhibit