- 法庭表示从业主提供的文件以及其他证据中，显示租客的确有拖欠租金和霸占有关产业；租客也无法提出合适的疑点。…the affidavit evidence and the exhibits therein in this matter, clearly show that the plaintiff had established a prime facie case and is entitled to the summary judgment. Thereafter, the onus of proof would shift to the defendant to satisfy the court as to why summary judgment should not be granted .However, the defendant’s bare denials in the Defence Counterclaim and the said Affidavit Jawapan are inadequate to challenge or rebut the prima facie evidence adduced in the plaintiff’s Affidavit in Support of the application for summary judgment。
- Enclosure 1 is the appellant/defendant’s appeal against the decision of the learned Butterworth Sessions Court Judge dated 07/1/2021 which allowed the respondent/plaintiff’s application for summary judgment with cost of RM 3,000.00.
Brief Background Facts
- For ease of reference, the parties will be referred into in their original capacities as they were in the Sessions Court.
- The plaintiff entered into Tenancy Agreement dated 22/02/2016 with the defendant in respect of a premises known as No. 2011, Jalan Perusahaan, Kawasan MIEL, Prai Industrial Estate, 13600 Perai, Pulau Pinang (“Demised Premises”) for the period, 01/05/2016 till 30/04/2019 (“Tenancy Agreement”).
- Pursuant to the terms of the Tenancy Agreement, in particular, clauses 2, 5.1, paragraph 6(a) and paragraph 6(b) of the First Schedule, the defendant shall pay the plaintiff, monthly rental of RM 19,000.00 + 6% GST @ RM 1,140.00.
- The defendant breached the Tenancy Agreement by failing to pay the monthly rental since April 2019 and refused to yield vacant possession of the Demised Premises to the plaintiff until 25/07/2020.
- The plaintiff through its solicitors issued a notice of termination of the Tenancy Agreement on 19/09/2019 and in or around June 2020, to the defendant, receipt of both which were acknowledged by the defendant.
- Subsequently, the defendant sent a letter of undertaking signed by their director and endorsed with the company stamp to the plaintiff, wherein the defendant undertook, amongst others, to hand over vacant possession and pay in full the arrears of rental on or before 14/06/2020.
- However, the defendant failed to comply with their undertakings.
- Meanwhile, on 27/06/2019, the plaintiff sold the Demised Premises to His Perfect Gift Properties Sdn. Bhd. and the Demised Premises was registered under the name of His Perfect Gift Properties Sdn. Bhd. on 01/06/2020.
- Consequently, the plaintiff as the vendor suffered losses as they could not deliver vacant possession of the Demised Premises to the new owner until the defendant delivered vacant possession to the plaintiff on 25/07/2020.
- As a result of the holding over of the Demised Premises by the defendant, the plaintiff suffered losses which included but not limited to the sum of RM 64,801.46 being the liquidated damages paid to His Perfect Gift Properties Sdn. Bhd., for late delivery of vacant possession of the Demised Premises and RM 17,600.00 for installation/replacement of the switchbox at the Demised Premises.
- Thereafter, the plaintiff instituted a claim against the defendant in Butterworth Sessions Court, Civil Action No.: PB-A52NCvC-43- 09/2020, for the arrears of rental from April 2019 until May 2020 amounting to RM 400,600.00 and the accrued interests thereon.
- The plaintiff then filed an application under Order 14, rule 1, Rules of Court 2012 (“ROC 2012”) to enter summary judgment against the defendant.
- Subsequently, on 07/01/2021, the learned Sessions Court Judge entered summary judgment against the defendant for RM400,600.00 being arrears of rental plus interest and with costs of RM 3,000.00.
- Dissatisfied with the said decision, the defendant appealed against the said decision. Grounds of Appeal
- The defendant raised essentially 3 grounds to be considered at this appeal, as follows: –
(i) whether the application for summary judgement must be filed before or after the service of Appearance;
(ii) whether the learned Sessions Court Judge had erred in facts and law in allowing the plaintiff’s application for summary judgment; and
(iii) whether there are triable issues. Findings
Whether the Application for Summary Judgement Must be Filed Before or After the Service of Appearance
- The plaintiff’s application for summary judgement was served on the defendant after the Defence and Counterclaim dated 14/10/2020 (“Defence and Counterclaim”) was served on the plaintiff.
- The defendant contended that:
(i) the plaintiff’s application under Order 14, rule 1, ROC for summary judgement has to be served on the defendant before the Defence is served on the plaintiff;
(ii) the Defence and Counterclaim clearly showed that the defendant has the intention to defend and has a Defence that has to be tried at a trial;
(iii) the plaintiff did not provide any cogent and reasonable reasons for the delay in filing the said application.
- Order 14, rule 1, ROC:
“Application by plaintiff for summary judgment (O. 14, r. 1) 1.(1) Where in an action to which this rule applies a statement of claim has been served on a defendant and that defendant has entered an appearance in the action, the plaintiff may, on the ground that the defendant has no defence to a claim included in the writ, or to a particular part of such a claim, or has no defence to such a claim or part thereof except as to the amount of any damages claimed, apply to the Court for judgment against that defendant.”
- Order 18, rule 2, ROC:
“Service of defence (O. 18, r. 2) 2.(1) Subject to paragraph (2), a defendant who enters an appearance in, and intends to defend, an action shall, unless the Court gives leave to the contrary, serve a defence on the plaintiff before the expiration of fourteen days after the time limited for appearing or after the statement of claim is served on him, whichever is the later. (2) If a notice of application under Order 14, rule 1 is served on a defendant before he serves his defence, paragraph (1) shall not have effect in relation to him unless by the order made on the notice of application, he is given leave to defend the action and, in that case, shall have effect as if it required him to serve his defence within fourteen days after the making of the order or within such other period as may be specified therein.”
- The relevant provisions of the ROC as stated above, does not stipulate that no summary judgment may be obtained in the event the Defence was already filed by the defendant before the application for summary judgment was filed.
- Furthermore, in Perkapalan Shamelin Jaya Sdn Bhd & Anor v Alpine Bulk Transport New  3 MLJ 818, Gopal Sri Ram JCA (as his Lordship then was) delivering the judgment of the Court of Appeal, held, “In Ng Hee Thoong, this court reversed the High Court and granted leave to defend principally on the ground that the issue whether a valid demand had been made of the defendants in that case was plainly arguable. This court also took into account the fact that the plaintiff in that case had remained inactive for more than a year and then moved for summary judgment without giving notice of intention to proceed under the relevant provision of the RHC. When properly understood, there is nothing in Ng Hee Thoong’s case to suggest that an application for summary judgment may be defeated solely on the ground that there has been a delay in moving the court. Such a proposition runs counter to the interests of justice. For delay can surely provide no answer to an application made under O 14 where there are no bona fide triable issues. We therefore take this opportunity to declare the absence of the proposition contended for by counsel.”
- Therefore, I hold that the delay of 13 days in filing the application for summary judgment after the Defence was filed, is not a cogent reason to dismiss the plaintiff application for summary judgment, especially since there are no bona fide triable issues raised by the defendant, as explained herein below. The said delay of 13 days cannot be considered to be an inordinate delay.
- Additionally, Order 14, ROC clearly states that summary judgment may be entered in the event the defendant has no defence to the claim.
Whether the Learned Session Court Judge had Erred in Facts and Law in Allowing the Plaintiff’s Application for Summary Judgment
- The defendant contended that:
(i) since it is pleaded in the Defence and Counterclaim that the facts asserted by the plaintiff are not admitted the learned Session Court Judge erred in facts and law in concluding that the Defence was a bare defence. The defendant added that the non-admission in the Defence puts the plaintiff to proof, whereas a denial would give rise to an obligation to plead an alternative case.
(ii) thus, according to the defendant the case must be set down for trial as the issues raised in the Defence are all triable issues that require the plaintiff to proof on a balance of probability.
(iii) the defendant also submitted that the learned Sessions Court Judge had erred in facts and law when it was held that the defendant did not adduce any evidence in their affidavit to prove the averments therein on the basis that Order 18 rule 7(1), ROC, states, inter alia, that pleadings shall contain only a statement in a summary form of the material facts, but not the evidence by which those facts are to be proved.
(iv) the contents of the defendant’s Afidavit Jawapan dated 10/11/2020, were unrebutted and unchallenged.
- Having perused the defendant’s Defence and Counterclaim and the said Affidavit Jawapan, I find that the learned Sessions Court Judge did not err in facts and law as the said cause papers merely contained bare denials. The defendant failed to tender any evidence to support their contentions and/or allegations.
- By merely repeating “tidak diakui” in the Defence and Counterclaim and the said Affidavit Jawapan, the defendant failed to put forward their version to challenge or rebut the plaintiff’s averments. On the other hand, the plaintiff’s assertions were substantiated by evidence as seen in the documents exhibited in the plaintiff’s affidavit in support.
- In Chen Heng Ping & Ors v Intradagang Merchant Bankers (M) Bhd  2 MLJ 363, Mahadev Shankar JCA, delivering the judgment of the Court of Appeal, held, “When an application is made for summary judgment under O 14 supported by an affidavit which goes to show that there is no defence, the defendants must show cause why leave to defend must be given. This means that the defendants must provide answers on oath which constitute evidence that they have a defence which is fit to be tried. Denials in a defence do not constitute evidence. They are challenges to the other side to show proof. In the present case the guarantors do not appear to have appreciated this. Their affidavits merely relied on the defence they pleaded, which consists of bare denials and points of law which they could not sustain.”
- Therefore, as merely denial does not constitute evidence, the burden of proof does not to shift to the plaintiff to disprove the defendant’s bare averments or denials.
Whether There are Triable Issues
- The defendant contended that plaintiff failed to provide proof and/or supporting documents, for the following:
(i) the alleged damage and replacement of the fuse box was caused by the defendant;
(ii) the defendant’s refusal and/or failure to give up possession after allegedly being told to do so by the plaintiff;
(iii) the alleged contract of sale of the Demised Premises to His Perfect Gifts Properties Sdn Bhd; and
(iv) whether the Demised Premises was sold with or without vacant possession and if the Demised Premises was sold with vacant possession, then the plaintiff has no locus standi to bring this action against the defendant.
- However, the affidavit evidence and the exhibits therein in this matter, clearly show that the plaintiff had established a prime facie case and is entitled to the summary judgment. Thereafter, the onus of proof would shift to the defendant to satisfy the court as to why summary judgment should not be granted.
- However, the defendant’s bare denials in the Defence Counterclaim and the said Affidavit Jawapan are inadequate to challenge or rebut the prima facie evidence adduced in the plaintiff’s Affidavit in Support of the application for summary judgment. It is trite law that bare denials or assertions do not constitute evidence and do not give rise to triable issues.
- Therefore, I hold that the defendant’s averments in the Affidavit Jawapan which were unsubstantiated by any evidence, confirms that there are no triable issues and that the defendant does not have a defence of merit. The defendant’s bare denials and allegations are a sham and are nothing more than an attempt to evade the plaintiff’s claim.
- Consequently, the defendant failed to discharge their burden to show that there is a triable issue or that they have any meritorious defence. Hence, the Learned Sessions Court Judge was not in error in granting summary judgment in favour of the plaintiff.
- It is also pertinent to the note that the defendant had admitted liability when the defendant sent a letter of undertaking signed by their director (the person who also affirmed the defendant’s Affidavit Jawapan) and endorsed with the company stamp to the plaintiff, wherein the defendant undertook, amongst others, to hand over vacant possession and pay in full the arrears of rental on or before 14/06/2020.
- And, the defendant failed to challenge or rebut this crucial piece of evidence.
Under the Temporary Measurement for Reducing the Impact of Coronavirus Disease 2019 (COVID–19) Act 2020, was the Plaintiff’s action at Butterworth Session Court Validly Commenced, Granted or Carried out?
- In the course of the hearing of the Appeal, the defendant also raised the above issue as a point of law.
- The defendant contended that the filing of this action by the plaintiff goes against Section 7, Temporary Measurement for Reducing the Impact of Coronavirus Disease 2019 (COVID–19) Act 2020, (“COVID–19 Act”) which states, as follows:
“The inability of any party or parties to perform any contractual obligation arising from any of the categories of contracts specified in the Schedule to this Part due to the measures prescribed, made or taken under the Prevention and Control of Infectious Diseases Act 1988 [Act 342] to control or prevent the spread of COVID-19 shall not give rise to the other party or parties exercising his or their rights under the contract.”
- According the defendant, as Part II (which includes sections 5 and 7) of the COVID–19 Act have come into operation on 18/03/2020 and has continued to remain in operation until 30/06/2021, the action filed by the plaintiff on 01/9/2020 and the learned Session Court Judge’s decision on 07/01/2021 has not been validly commenced, granted or carried out.
- However, it is vital to note that the arrears of rental were owed by the defendant to the plaintiff since April 2019, which obviously was not due to the spread of Covid-19 virus and well before the enactment of the COVID–19 Act.
- In any event, COVID–19 Act only came into effect on 18/03/2020 and the said Act does not have any retrospective effect and therefore does not affect the plaintiff’s claim for the arrears of rental since April 2019.
- Additionally, this is not pleaded in the Defence and thus cannot be raised now at the appellate stage. Albeit the issue is a legal issue, in order for any legal issue to raised, particulars which led the defendant to rely on this defence and/or legal issue must be pleaded.
- The inclusion of brief particulars in the Defence is required, so that the plaintiff will be aware of all the defences raised by the defendant, and therefore have the opportunity to challenge or rebut the same.
- In Mentari Sekitar Sdn. Bhd. v Heritage Property Sdn. Bhd  MLJU 1604, the Court of Appeal, stated:
“ It is trite and established principle that the appellate court tends to lean against allowing issues not pleaded, raised or argued in the court of first instance. In Lee Ah Chor v Southern Bank Bhd.  1 MLJ 428, the Supreme Court held that where a vital issue was not raised in the pleadings it could not be allowed to be argued and to succeed on appeal. It would be manifestly unjust for the appellant to succeed before us on a point not taken before the High Court [see the Federal Court’s decision in Veronica Lee HaLing & Ors v Maxisegar Sdn. Bhd.  2 MLJ 141]. It would also be a salutary reminder that it is not the function of this Court to make out a case or provide a relief which is not adverted to in the pleadings or new points to be raised and argued on the appeal when those points are not pleaded nor raised in the court below [see the Court of Appeal’s decision in Osaka Resources Sdn. Bhd. & Ors v Foo Holdings Sdn. Bhd. and another appeal  1 MLJ 470].  The importance of pleadings is also well established in our adversarial system of civil litigation and has found favour with a plethora of cases such as Hadmor Productions v Hamilton  1 AC 191 wherein Lord Diplock said-
“Under our adversary system of procedure, for a judge to disregard the rule by which counsel are bound, has the effect of depriving the parties to the action of the benefit of one of the most fundamental rules of natural justice, the right of each to be informed of any point adverse to him that is going to be relied upon by the judge, and to be given the opportunity of stating what his answer to it is …….”
“The present case does not come under any of the established exceptions. The new point to be raised is not one of jurisdiction or illegality. It is also not a mere omission which could be categorized as falling within the realm of technicality.”
- Hence, I find that facts leading to the applicability of COVID–19 Act, was not only pleaded, the same also lacks merit for the reasons explained above.
- For the reasons stated above, the appellant/defendant’s appeal in enclosure 1 is dismissed with costs of RM 5,000.00, subject to the payment of allocatur.
Source: Union Pile (Penang) Sdn Bhd v Core Rising (Penang) Sdn Bhd  MLJU 1760. High Court Penang. George Varughese JC.
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