Abdul Kadir Sulaiman J:

By a specially indorsed writ of summons, the plaintiff claims against the defendant for alleged agreed commission of RM300,000 (the commission) for introducing the defendant to be a sub-contractor for Pembinaan Masrafan Sendirian Berhad/Hidroelektra JV ("Masrafan") who is the contractor for the upgrading, improvement and bitumen surfacing of Bau Lundu Sematan Road, Section A, B and C ("the Project"). The said writ of the plaintiff was served on the defendant on 23 April 1994 and on 27 April 1994 the defendant filed its memorandum of appearance followed by its defence on 4 May 1994. On 12 May 1994 the plaintiff filed an application under O.14 of the Rules of the High Court 1980 (the RHC) for summary judgment combined with one under O.18 r.19 of the RHC for the striking out of the defence. However, at the hearing, the plaintiff elected to proceed only with his application for summary judgment.

The hearing of the application of the plaintiff was originally scheduled for hearing before the learned Senior Assistant Registrar (the SAR) on 30 July 1994. However, before the hearing date, on 25 July 1994 the defendant filed its affidavit in opposition to the plaintiff's application affirmed by its managing director, Chan Wa Keong on 23 July 1994. Also on the same day, the defendant filed an application for leave to amend its statement of defence under O.20 r.5 of the RHC. This is done obviously upon the content of the affidavit in support of the plaintiff exhibiting certain exhibits therein which summons in chambers was served on the defendant on 16 May 1994, i.e. 4 days after it was filed in Court. I say so because in the affidavit in support of the application and in its affidavit in opposition to the plaintiff's application, the authenticity of certain exhibits were seriously challenged by the defendant.

This application of the defendant was scheduled for hearing on 1 December 1994 before the learned SAR. On 30 July 1994 when the plaintiff's application under O.14 was before the Court, it was adjourned to 6 August 1984 for arguments. On 6 August 1994 by consent the Court allowed the said affidavit in opposition of the defendant though filed out of time to be used in the proceedings, but with liberty to the plaintiff to file affidavit in reply. Consequently the matter was further adjourned to 5 September 1994 for the Court to decide which application to be disposed off first bearing in mind that by this time there were two applications filed in Court, one for the plaintiff and the other for the defendant, though the defendant's application was scheduled earlier for hearing on 1 December 1994. On 5 September 1994, however, the learned SAR again deferred her decision to 23 September 1994 for directions from the Judge. I agreed to take the matter out of the hands of the SAR and fixed the hearing of both the applications before me on 2 December 1994.

On the date of hearing, by consent, both the applications were to be heard together by me but the defendant be given the first opportunity to submit on its application for amendment of the defence and then for the plaintiff to reply including his submission on his application for summary judgment. The defendant would then be having its final reply in respect of both the applications. At the end of the day, after hearing submissions and considering the evidence in respect of both the applications, I dismissed the application of the defendant for amendment of the defence with costs to the plaintiff, and allowed the application of the plaintiff for summary judgment on the original defence of the defendant. I entered judgment in favour of the plaintiff in the sum of RM300,000 being the agreed amount of commission payable by the defendant to the plaintiff with interest at 8% per annum from the date of judgment to date of settlement with costs to the plaintiff to be taxed, unless agreed. I now state my reasons.

First, I will deal with the reasons for the dismissal