York (M) Sales & Services Sdn. Bhd V Mega Air Conditioning Sdn Bhd & Ang Eng Huat


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This an application vide a Summons in Chambers in Enclosure 9 by the Defendants/Applicants under Order 18 Rule 19 of the Rules of the High Court 1980 for an order that the writ and statement of claim be struck out on the grounds that it is scandalous, frivolous or vexatious and/may prejudice, embarrass or delay the fair trial of the action and/or is an abuse of the process of Court. The application is supported by Affidavit affirmed on 17.9.2009.


The Facts


In the Statement of Claim the Plaintiff and the 1st Defendant entered into an agreement to sell and deliver and/or provide services to the 1st Defendant. By a Guarantee dated 13.4.1995 the 2nd Defendant agreed to guarantee the payment of the goods sold and delivered and/or services provided. The amount claimed is RM744,265.00. The Defendants in the Statement of Defence denied having knowledge of any agreement and/or guarantee and puts the Plaintiff to strict proof. The


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Defendants also state that if there was such an agreement the action initiated by the Plaintiff is time barred and also that there is no consideration.


The Plaintiff in his Affidavit affirmed on 5.11.2009 stated that the 1st Defendant issued Purchase Orders to the Plaintiff to supply air conditioning equipments to specific locations (Exhibits WC-1). The delivery instruction was very clear that is the equipment were to be delivered to the Kemayan City Site. The payment would be from Capital Dynasty Sdn. Bhd. The Plaintiff also exhibited the Delivery Notes (Exhibit WC-2) to show that the air conditioning equipments were duly delivered. A notice of overdue account was issued to the 2nd Defendant dated 12.12.1997. There is also an acknowledgement by the parties of the payment of RM500,000.00 made by the 1st Defendant. The 1st Defendant however in the Affidavit affirmed on 8.1.2010 that the RM500,000.00 was not a payment for any debt owing but it was in actual fact a form of financial assistance requested by the Plaintiff (Exhibit AEH-1).


It is only in plain and obvious cases that the Court will dismiss an action summarily. In the case of Lee Nyan Choi v. Voon Noon [1979] 2 MLJ 28 Lee Hun Hoe CJ (Borneo) at page 29 observed that ,


“The power to dismiss an action summarily without permitting a party to trial is a drastic power and should be exercised with utmost caution. The power of summary procedure should only be resorted to on plain and obvious cases.”


The Federal Court in Roslan bin Abdullah v, New Zealand Co. Ltd. [1981] 2 MLJ 324 and in Golden Century Development Sdn Bhd v


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Ganhoe & Anor [1983] 1 MLJ 86 referred to the English case, AG of Duchy of Lancaster v. L & NW Railway Co. [1892] 3 Ch 274 and


observed that summary procedure ,


“…can only be adopted when it can clearly be seen that a claim or answer is on the face of it ‘obviously unsustainable’.”


The principle relating to O18 r. 19(1) RHC was considered in Bandar Builder Sdn. Bhd. V. United Malayan Banking Corporation Bhd [1993] 3 MLJ 36. Mohamad Dzaiddin SCJ (as he then was) said at pg 43 that,


“It is only in plain and obvious cases that recourse should be had to summary process under this rule (per Lindley MR in Hubbuck & Sons ltd v. Wilkinson, Heywood & Clark Ltd.) and this summary procedure can only be adopted when it can be clearly seen that a claim or answer can only be adopted when it can be clearly seen that a claim or answer is on the face of it ‘obviously unsustainable’.”


His Lordship goes on to say that such process,


“.cannot be exercised by a minute examination of the documents and facts of the case, in order to see whether the party has a cause of action or a defence.The court must be satisfied that there is no reasonable cause of action or that the claims are frivolous or vexatious or that the defences raised are not arguable.”


In this application it appears to me that that was an agreement to deliver air conditioning equipments by the Plaintiff upon request of the 1st Defendant. There was also a Guarantee executed between the Plaintiff and 2nd Defendant. Another issue which needs to be ventilated at full trial would be the issue of the payment of RM500,000.00 by the 1st


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Defendant to the Plaintiff. The Court will be able to determine whether the payment was debt owing by the 1st Defendant or whether it was a financial assistance by thelst Defendant to the Plaintiff. Besides this there is also the issue of whether the claim of the Plaintiff is time barred. The Affidavit filed by the Defendants does not show that the claim is time barred.


His Lordship Visu Sinnadurai, J in Malayan Banking Bhd v. Teguh Consolidated Sdn Bhd & Anor & Another Case [1998]1 CLJ 254 at pg 268, observed that,


“The rules of court providing for summary disposal of cases are intended to be invoked in clear and obvious cases – cases where defendants have no defences or where pleadings disclose no causes of action…these very provisions are often invoked in cases where they ought not to be invoked.”


Having considered both the oral and written submissions of the Counsels this court is of the view that this case is not a plain and obvious case and that the Plaintiffs action is not frivolous, vexatious or an abuse of the Court. The Statement of Claim disclosed a reasonable cause of action and there are number issues which need to be fully ventilated in full trial. Therefore the application of the Defendants in Enclosure 9 is dismissed with cost.




Judicial Commissioner


High Court of Malaya at Kuala Lumpur.


17 May 2010

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