Defendant’s Written Submission

In opposition to the Plaintiff’s Summary Judgment Application

IN THE HIGH COURT OF MALAYA AT KUALA LUMPUR

IN THE FEDERAL TERRITORY OF MALAYSIA
(CIVIL DIVISION)
SUIT NO. D5-22-225 OF 2019

BETWEEN

SEMESTA INSURANCE UNDERWRITING AGENCY SDN BHD … PLAINTIFF

(COMPANY NO.: 117933-P)

AND

KOPERASI INSURANCE (M) SDN BHD … DEFENDANT

(COMPANY NO.: 435318-U)

DEFENDANT’S WRITTEN SUBMISSION

(Opposing Plaintiff’s Application for Summary Judgment)

A. INTRODUCTION

1. This written submission is filed in opposition to the Plaintiff’s Application for

Summary Judgment pursuant to Order 14 of the Rules of Court 2012 wherein the

Plaintiff had prayed for inter alia, among others the sum of RM 300,000.00 a

year purportedly being loss of profits suffered by the Plaintiff from 30 March

2013 and continuing, and the sum of RM 15 million being general damages for

libel.

2. The Defendant’s primary grounds in opposition to the Plaintiff’s Summary

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 Judgment are as follows:

(i) The Defendant has a valid and meritorious defence;

(ii) There are substantial and material disputes of fact and of law in this case

such that it would be necessary for parties to furnish amongst others,

further and better particulars, interrogatories and/or to make discovery so

as to ensure that all the relevant documents are before this Honourable

Court for the fair disposal of this action; and

(iii) There are at least nine (9) issues which ought to be determined at the

full trial of this action.

B. THE CAUSE PAPERS

3. We crave leave of this Honourable Court to refer to the following cause papers:

(i) Plaintiff’s Writ dated 20.03.2019 (“Writ”) and Statement of Claim dated

01.04.2019 (“Claim”) [Enclosure 1];

(ii) Defendant’s Defence dated 03.04.2019 (“Defence”) [Enclosure 7];

(iii) Plaintiff’s Reply to the Defendant’s Defence dated 9.9.2016 (“Reply”)

[Enclosure 9];

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 (iv) Notice of Application for Summary Judgment filed on 23.9.2016

(“Plaintiff’s Summary Judgment Application”) [Enclosure 10];

(v) Plaintiff’s Affidavit in Support affirmed by Mekhael Norman on

19.9.2016 (“Plaintiff’s Affidavit in Support”) [Enclosure 11];

(vi) Defendant’s Affidavit in Reply affirmed by Ismail bin Mahtar on

9.11.2016 (“Defendant’s Affidavit in Reply No.1”) [Enclosure 14];

(vii) Plaintiff’s Affidavit in Reply affirmed by Mekhael Norman on

24.11.2016 (“Plaintiff’s Affidavit in Reply No.1”) [Enclosure 15];

C. BRIEF FACTS

4. The Plaintiff is a private limited company incorporated in Malaysia under the

Companies Act 1965 and having its business address at M2-C-9/2 (Tingkat 2),

Jalan Pandan Indah 4/6, Pandan Indah, Wilayah Persekutuan Kuala Lumpur,

Malaysia.

5. The Defendant is a co-operative entity incorporated in Malaysia under the Co-

operatives Act 1948 and having its registered address and business address at

305, Jalan Tuanku Abdul Rahman, Chow Kit, 50100, Wilayah Persekutuan Kuala

Lumpur.

6. The Plaintiff had commenced action against Defendant for in respect of four (4)

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 causes of action, namely:

(i) Negligence in commencing the sessions court action and the winding up
petition against it;

(ii) Negligence in failing to provide the Plaintiff with the letter of release
stating that the Plaintiff was not indebted to Defendant;

(iii) Negligence in failing to provide the Plaintiff with the correct set forms
for the renewal of the Plaintiff’s underwriting agency license; and

(iv) Judgement in default obtained by Defendant was obtained maliciously

and unreasonably and amounts to malicious prosecution.

7. It is imperative to note that the relationship between the defendant to the plaintiff

with regards to the cause of action set out under paragraphs 6(i) to (iv) is that of a

litigant to another in a court proceeding.

8. Hence, in the event that the Plaintiff were to raise a cause of action under

negligence, there must be a duty of care owed by the Defendant to the Plaintiff,

in which the Defendant’s proposition is there is no duty of care owed by the

Defendant to the Plaintiff.

9. The Defendant maintains that the deed of assignment tendered by the plaintiff

has not been stamped to date and therefore the deed of assignment is invalid and

unenforceable.

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10. The Plaintiff alleged that the Defendant was negligent in providing the wrong

forms to the Plaintiff for the renewal of Underwriting Agency license. However,

the Plaintiff has not only failed to comply with Regulation 8/16 (ii) of the

General Insurance Agents Registration Regulations by being a corporate

nominee, director and shareholder of two principals at the same time, it has also

failed to do the following:

(i) The Plaintiff has failed to comply with the necessary requirements in

maintaining a premium account balance RM 500,000.00 in order for the

underwriting agency license to be renewed;

(ii) In addition and particularly in the case of and

(iii) In addition and particularly in the case of .

11. In short, the Plaintiff is attempting to obtain a lump sum summary judgment

against the Defendant for 4 different cause of actions where they have also failed

to submit the proper and necessary documents and requirements as required

under to prove such liability owed by the Defendant towards them.

D. THE LAW – SUMMARY JUDGMENT

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12. The law in so far as an application for summary judgment is concerned is trite.

The Court would not grant summary judgment in circumstances where it can be

shown that the Defendant has a bona fide defence and where the Defendant has

raised triable issues.

13. If authorities need to be cited for the above proposition then we will refer to the

following:

(i) Order 14 rule 1 of the Rules of Court, 2012 [See the Defendant’s

Bundle of Authorities “DBA” Tab 1];

(ii) Shorga Sdn Bhd v Amanah Raya Berhad [2004] 1 CLJ 417 [DBA

Tab 2] at pages 15 to 16;

(iii) United Malayan Banking Corporation Berhad v Palm & Vegetable

Oils (M) Sdn Bhd & Ors [1983] 1 MLJ 206 [DBA Tab 3] at page 27;

(iv) Alloy Automotive Sdn Bhd v Perusahaan Ironfield Sdn Bhd [1986] 1

CLJ 2 [DBA Tab 4] at page 41;

(v) Bank Negara v Mohd Ismail & Ors [1992] 1 MLJ 400 [DBA Tab 5]

at page 51; and

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 (vi) Malayan Insurance (M) Sdn Bhd v Asia Hotel Sdn Bhd [1987] 2

MLJ 183 [DBA Tab 6] at page 62.

E. THE ISSUE

14. The primary issue to be determined by this Honourable Court is:

Whether this is a fit and proper case to be determined summarily?

15. The short answer is a no.

16. In determining the above primary issue, this Honourable Court would also have

to determine the following subsidiary issue:

Whether the Defendant has raised any triable issues?

17. The short answer is yes.

18. The Defendant shall deal with the abovementioned issues in detail below which

would ultimately show that this is not a fit and proper case for this Honorable

Court to grant a judgment summarily and that the Plaintiff’s Summary Judgment

Application ought to be dismissed with costs.

F. SUBMISSIONS

19. The Defendant respectfully submits that this is not a fit and proper case to be

determined summarily as there are bona fide issues to be tried which requires

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 further discovery of documents and examination of oral as well as documentary

evidence.

20. To date, the Defendant has identified at least seven (7) issues that ought to be

determined at the trial of this action and they are as follows:

(i) Whether the Defendant was negligent to Plaintiff in commencing the

session court action and obtaining the judgement in default against

Plaintiff ? (“1st Issue”)

(ii) Whether the Plaintiff was wrongfully terminated by the Defendant?

(“2nd Issue”)

(iii) Whether the advertising of winding up petition is defamatory to

Plaintiff? (“3rd Issue”)

(iv) If the answer to the question at paragraph 20 (i) hereinabove is in the

affirmative, whether the commencement of Session Court action and

winding up petition is malicious to Plaintiff ? (“4th Issue”)

(v) In respect of the debt owed by the Plaintiff to the Defendant, whether the

Defendant is under the duty to provide letter of release to Plaintiff

releasing Plaintiff off the debt owed? (“5th Issue”)

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 (vi) Whether the Defendant was under duty to provide correct forms for

renewal of underwriting agency license to the Plaintiff? (“6th Issue”);

and

(vii) Whether Plaintiff has proven its claim for loss and damages? (“7th

Issue”)

21. For ease of reference, the Defendant has prepared a table which is annexed to

these submission as “Annexure-A” which summarizes the Defendant’s

contention against the Plaintiff’s claim herein as well as to set out the various and

different terms and condition of contract(s) and/or projects involved for which

the Plaintiff is attempting to obtain summary judgment for and the Defendant’s

counsel will submit further on this at the hearing of the Plaintiff’s Summary

Judgment Application.

22. The Defendant respectfully submits that a perusal of Annexure-A would

ultimately show that there are numerous and substantial dispute of facts in this

matter which may only be determined by examination and cross-examination of

witnesses and closer examination of the documentary evidence at trial.

23. Notwithstanding the above, the Defendant will deal with some of the triable

issues set out above in its submission below.

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 Invoices Issued By The Plaintiff Not In Accordance With The Terms And

Condition Of The Respective Contracts And the Plaintiff’s Statement of

Account Are Not Conclusive Evidence Of The Amount That Ought To Be

Paid By The Defendant.

24. The Plaintiff has exhibited numerous invoices in support of its application for

Summary Judgment herein.

25. The Defendant has denied these invoices on the premise that they were

incomplete and not submitted together with the relevant and requisite documents

as stipulated under the contracts.

26. It should be noted that the Defendant has already made payment for any and/or

all invoices which have been duly verified and submitted according to the terms

and condition of the respective contracts.

27. The Defendant had made part payments on the undisputed portion of the

Plaintiff’s invoices on goodwill and upon the requests of the Plaintiff. These part

payments cannot not be construed as an admission of work satisfactorily

completed and monies owed.

28. See Tenaga Nasional Bhd v Perwaja Steel Sdn Bhd [1995] 4 MLJ 673 [DBA

Tab 8], where Low Hop Bing J (as he then was) held at page 70-71:

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 “In my judgment, it is the plaintiff's obligation and legal duty to send

correct electricity bills and 20% discount credit notes to the defendant.

The plaintiff at all material times knew that the defendant would rely

upon these bills and credit notes to make payment. These bills and

credit notes were signed by authorized officers of the plaintiff, as

confirmed by the evidence of PW-1 who is the District Manager for

Kemaman. However, under cross-examination, he has categorically

stated that he has no knowledge concerning the issue of the 20%

discount as all these matters were handled by the plaintiff's Head

Office in Kuala Lumpur. He only followed directions from the Head

Office in Kuala Lumpur. In light of his ignorance, his evidence did not

assist the plaintiff in establishing its claim against the defendant.

….

Under s 101(1) of the Evidence Act 1950, whoever desires the court to

give judgment as to any legal right or liability, dependent on the

existence of facts which he asserts, must prove that those facts exist.

In other words, the plaintiff must prove such facts as the plaintiff

desires the court to give judgment as to its right to claim against the

defendant or the defendant's liability to pay the plaintiff. The burden

of proof is on the plaintiff: s 101(2). In order to succeed here, the

plaintiff must prove its claim affirmatively.”

29. The incompleteness of the invoices is clearly shown when compared with the

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 amounts claimed by Plaintiff in this action. For instance, the Defendant wishes to

draw the attention of this Honourable Court to pages 403 to 406 of the Plaintiff’s

Affidavit in Support whereby the Plaintiff is claiming a sum of RM11,916.80

less 10% as retention sum for “inspection visually for damages framework all

spaces, perform thickness testing” and “inspect visually bulkheads for damages.”

Subsequently, the Plaintiff is again claiming RM10,214.40 less 10% as retention

sum for “inspect visually hull incl appendages, perform thickness testing.” The

Defendant could not make payments for any or all invoices submitted by the

Plaintiff without complete supporting documents for verification purposes.

30. It is imperative to note that regardless of the invoices issued by the Plaintiff

and/or the amount claimed by the Plaintiff therein, some of the contracts

specifically provide that the Plaintiff would only be entitled to receive the

amount claimed by it if the Defendant receives the same amount from the project

owner.

31. For instance, Clause 3.5 of the contract between the Defendant and the Plaintiff

for the vessel known as KD Kedah [please see page 39 of the Defendant’s

Affidavit in Reply] provides:

“The Contractor hereby covenants to pay the Subcontractor

progressively upon the execution and completion of the Work or

portion of the Work for which payment is claimed and has been

satisfactorily completed as per Clause 2.2, subject always to

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 Contractor receiving the same relevant claim from the Owner.”

32. It is clear that the Defendant’s obligation to pay the Plaintiff is subject to them

being paid by the Vessel’s Owner (Royal Malaysian Navy), the Plaintiff is bound

by this terms and shall not now renege on their contractual promises by seeking

payment from Defendant for work done under that Contract when the Defendant

themselves was not paid in full by the vessel’s owner.

33. See: Polygrams Records Sdn Bhd v The Search & Anor [1994] 3 MLJ 127

[DBA Tab 9] at page 102 and Mohd Ali bin Abdul Majid v Manokaran a/l

Veraya [2011] MLJU 1129 [DBA Tab 10] at page 133.

34. The Defendant contends that that all monetary claims for works done for the

vessel known as KD Kedah is subject to a validation exercise carried out by the

vessel owner (also known as cost verification and cost qualification exercise

[CV/CQ]).

35. The Defendant had duly informed the Plaintiff that the payment due to the

Plaintiff for the vessel known as KD Kedah is RM12,229,507.26 (please see

pages 870 to 872 of the Plaintiff’s Affidavit in Support). However, the Plaintiff

could not accept the explanation given by the Defendant and rejected the final

job value provided by the Defendant in accordance to the contract.

36. Therefore, the issue arises as to whether the Defendant is obliged to pay the

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 Plaintiff the sum that it claimed for or the sum as approved by the Royal

Malaysian Navy as provided for under the contract?

37. We respectfully state that the above is not an issue which ought to be determined

summarily. Ultimately, this Honourable Court ought to examine the

reasonableness of the Plaintiff’s claim and the basis of the deduction made by the

project owner and the sum received by the Defendant from the owner.

The Defendant does not owe any duty of care towards the Plaintiff

38. On this point, the action that is brought by the Plaintiff arise from the Judgement

in Default that was obtained against the Plaintiff. In light of this, the relationship

between the Defendant and the Plaintiff is that of a litigant in a court proceeding.

39. Judicial precedent had established that there is no duty of care owed by one

litigant to another as to the manner of which the litigation was conducted, as

these are procedural issues that are already dealt with in the Rules of Court.

Hence, the damages suffered by litigants during the legal process are not

remediable in an action based on negligence.

40. A landmark case that establishes this principle is the case of Business Computers

International Ltd v Registrar of Companies and others [1987] 3 WLR 1134, as

the judge quoted at para 28;

41. “...control of litigation and of the various steps taken in prosecuting litigation lies

in the Court and the rules and procedures that governs litigation and cannot be

sought via tortious duty of care imposed on one party for the benefit of the

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 other.”

“In my judgement, there is not duty of care owed by one litigant to another as to

the manner in which the litigation is conducted, whether in regard to service of process or

in regard to any other step in proceeding. The safeguards against impropriety are to be

found in the rules and procedures that control the litigation and not in tort.”

42. As affirmed by the judge, such action on litigation procedure is governed by the

rules and procedures of court and cannot be based on an action in tort. In Tetuan

Abdul Aziz & Associates v Sunshine heaven Sdn Bhd [2016] 6 MLRA, to quote

para 27;

43. “ As a general rule, a solicitor acting for a client in a civil case will owe no duty

of care to the opponent either in litigation or in non-contentious business.”

44. Hence, the defendant affirm no such duty of care exist to the plaintiff that would

bring a rise to a cause of action in negligence.

Whether the Plaintiff was wrongfully terminated by the Defendant.

1. This issue is pertaining to the application of renewal of underwriting agency license of

plaintiff. Under this ground, there are material disputes of facts.

2. The plaintiff claims the internal memo of defendant dated 12.05.1990 serves as a

termination of agency. The plaintiff relies solely on the internal memo as the basis of

allegation for the purpoted termination.

3. A point to note that is not disputed is the internal memo was distributed internally

within the Defendant’s company and was never served on Plaintiff.

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4. Nevertheless, it is a common practice of insurance agency to return cover notes in the

possesion of the agent to the insurance company, in which there is no evidence that

suggest the cover notes were returned to Defendant.

5. Therefore, the Defendant affirmed that no such termination took place as the evidence

does not prove otherwise.

45. THClause 20 of the said contract expressly provides:

“In the event that the Subcontractor’s manpower and/or machineries

shall remain idle at any time during this Agreement’s duration for

whatsoever reason, Subcontractor shall not be entitled to claim for

any cost incurred during the idling time.”

46. Notwithstanding the above express provision, the Plaintiff had proceeded to

make a claim and issued its invoice to claim for idle man power against the

Defendant.

47. One such instance can be seen if we refer to page 637 of the Plaintiff’s Affidavit

in Support whereby the Plaintiff had submitted idle manpower claim amounting

to RM293,664.00 in clear contravention of the express provision of the contract

executed between the parties.

48. Another similar issue can be seen in regard to the contract involving the vessel

known as Sarku H103 (Outfitting) whereby the Plaintiff would only be entitled to

half the rate of the idle manpower claim (please refer to page 23 of the

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 Defendant’s Affidavit in Reply). Part 3 Clause 11 of the contract reads:

“the contractor shall be entitled to claim for standby if work progress

interrupts by material delay and the total labour time shall be

calculated half of the basic rates entered by Contractor in the

quotation.”

49. It was also a term of the contract for Sarku H103 (piping system) whereby the

Defendant may change or re-schedule the construction schedule as and when the

Defendant deemed necessary and the Plaintiff as the contractor shall be obliged

to follow the revised schedule without claiming the Plaintiff for any extra cost

incurred due to the schedule revision. (please refer to page 23 of the Defendant’s

Affidavit in Reply).

50. However, the Plaintiff once again tried to make a claim for something which it is

not entitled to under the contract against the Defendant as can be seen from

Exhibit “CWL-2” at pages 813 to 814 of the Plaintiff’s Affidavit in Support

whereby the Plaintiff had wrongfully submitted idle manpower claim.

51. Since these claims were not made in accordance with the terms of the respective

contracts, the Plaintiff cannot be allowed to maintain the same against the

Defendant.

52. The Plaintiff alleged that it had claimed the cost of idle manpower for Sarku

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 H103(Piping System) works on the ground of unavailability of materials. The

Plaintiff had also similarly cited unavailability of materials as a ground to

demobalise the workers and did not complete the Sarku H103(Piping System)

works.

53. On the other hand, the Defendant contends that the Plaintiff’s allegation of

unavailability of materials due to late delivery and/or non-delivery of the

materials is clearly misconceived.

54. The Defendant maintains that together with its subcontractors (which includes

the Plaintiff) they have had weekly internal meetings to discuss and address

various issues regarding the Sarku H103 (Piping Works). The weekly internal

meetings are the appropriate forum for the Plaintiff to address late delivery

and/or non-delivery of the materials (if any). Any issues of any late delivery

and/or non-delivery of the materials should be discussed and agreed upon by the

Defendant and its subcontractors. The minutes of the weekly internal meetings

were sent to the Plaintiff and other subcontractors and the Plaintiff had never

disputed on the minutes at the material time.

55. As such, the Defendant submits that the Plaintiff cannot profit from the idle

manpower claims and should be held responsible for the additional cost incurred

to complete the Sarku H103(Piping System) works as the Plaintiff had caused

and/or contributed to and/or did not properly resolve the issues of unavailability

of materials for Sarku H103(Piping System) works.

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56. All the above show that there are material dispute on the facts which would

require amongst others, the oral evidence of the relevant officers who attended

the various meeting(s) as well as further examination and discovery of the

relevant documentary evidence.

Defendant’s Entitlement To Offset and/or Deduct The Monies For The Cost

Incurred To Rescue And/or Take Over The Balance Work For The Vessel

Known As Sarku H103

57. In this regard, the Defendant refers to Clauses 6 and 10 of the Terms and

Conditions of the General Work Order dated 11.11.2015 for the vessel known as

Sarku H103 (Outfitting) (please refer to pages 61 to 63 of the Defendant’s

Affidavit in Reply) which reads:

“6.1 Contractor shall ensure sufficient facilities, manpower and

resources to continuously and diligently execute and complete the

WORKS in accordance with the CONTRACT and/or any extension

thereof, CONTRACTOR, upon the COMPANY instruction, shall

supply additional facilities, manpower and resources if so required,

based on similar terms and condition.

6.6 In the event that the Contractor fails to supply and/or perform

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 the WORKS within the duration of the CONTRACT and/or fails to

perform in accordance to the Scope of WORKS as provided in this

CONTRACT, COMPANY reserves the right to procure the similar

services from other Contractor and all costs incurred will be borne by

the Contractor.

10.0 The COMPANY reserves the right to terminate this

CONTRACT in the event of non-conformance of the CONTRACT

scope of WORKS, its terms and conditions and/or any violation to the

applicable law and/or non-conformance to the HSE requirements….

Upon termination of the CONTRACT, the COMPANY is entitled to

step-in and take over the WORK from CONTRACTOR at

Contractor’s cost to enable the COMPANY to complete the

remaining portion of WORKS either by itself or by appointing

other party(s).”

58. Based on the above, it is clear that the Defendant is entitled to recover from the

Plaintiff for any additional cost incurred in the event that the Defendant is

required to take over the balance works of the Plaintiff.

59. Further, in regard to the vessel known as Sarku H103 (Piping System), the

Defendant submits that the Defendant is entitled to offset and/or deduct the

monies payable to the Plaintiff as the Plaintiff had failed to complete the

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 Outfitting works and Piping System works for the vessel known as Sarku H103.

60. Consequently the Defendant had suffered time and monetary loss as well as

incurred additional expenses to engage other contractor to take over the balance

work left behind by the Plaintiff.

61. We respectfully submit that the Plaintiff had not properly resolved the alleged

issue of lack of materials during the weekly internal meetings, which is the

appropriate forum to address any concern of the Plaintiff on the supply of

materials. Accordingly, the Plaintiff’s attempt to attribute its own failure to

complete the Sarku H103 (Piping Works) on the Defendant is untenable and

instead, the Defendant had acted in accordance to the Terms and Conditions of

the contract for Sarku H103 (Piping Works) and is entitled to recover from the

Plaintiff additional cost incurred to complete the balance work left behind by the

Plaintiff.

62. Please see Part 1 Clause 10 of the contract for Sarku H103(Piping Works) (please

refer to page 13 of the Defendant’s Affidavit in Reply) which reads:

“10.2 In the event where CONTRACTOR fails to complete the entire

work or substantially complete the work within the duration specified

in this Agreement, upon 24 hours written notice, COMPANY may

terminate this Agreement and finish the Work by any method

COMPANY deems expedient. CONTRACTOR shall be liable in

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 damages for such partial contractual obligation failure and agree to

pay COMPANY a proportionate share of damages suffered in

connection with such incomplete works that include cost of

completing the remaining works and/or the value of the portion of the

works that have not been performed, remedial works, repair, removal,

correction, handling and transportation of incomplete and/or defective

works, incurred by or assessed against CONTRACTOR, including

liquidated damages as herein provided.

COMPANY may withhold any payment which would otherwise have

been paid to CONTRACTOR under this Agreement and apply all

monies including any balance which may be otherwise due on the

Contract to the CONTRACTOR including Retention Sum.”

63. Hence the Plaintiff respectfully submit that there are clearly bona fide issues to

be tried in regard to the Defendant’s entitlement to offset and/or deduct the

monies for the cost incurred to rescue and/or take over the balance work for the

vessel known as Sarku H103 and these issues cannot be resolved and/or

determined summarily without going for full trial.

64. In view of the abovementioned issues as well as those set out in Annexure-A

herein, it is evident that the present case involves a multitude of substantial and

contentious disputes of fact, which can only be determined by viva voce evidence

and further examination of documentary evidence.

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65. See Abdul Rahim Abdul Hamid & Ors v. Perdana Merchant Bankers & Ors

[2000] 2 CLJ 457 CA [DBA Tab 11] at pages 153 to 154, where the Court of

Appeal held that –

“In a nutshell, in an application under O. 14 made by the plaintiff for

summary judgment without trial, the general principles established are

that the plaintiff has to satisfy the court that the defendant plainly and

obviously has no defence to the plaintiff's claim or part of the

plaintiff's claim. If the plaintiff is able to satisfy the court, then

summary judgment should be entered in the plaintiff's favour. On the

other hand, if the defendant can show that there is a serious

conflict of material facts as disclosed in the opposing affidavits, or

there is otherwise a triable issue worthy of judicial investigation in

the trial of the action, or there is an important and difficult point of

law requiring further and mature consideration at the trial, summary

judgment should be refused.”

G. CONCLUSION

66. To conclude, the Defendant re-iterates that:

(i) The Defendant has raised a bona fide defence against the entire claim;

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 (ii) There are substantial and material disputes of fact and of law in this case

such that it would be necessary for parties to furnish amongst others,

further and better particulars, interrogatories and/or to make discovery so

as to ensure that all the relevant documents are before this Honourable

Court for the fair disposal of this action; and

(iii) As such, this is not a fit and proper case to be determined summarily.

67. Wherefore the Defendant prays that the Plaintiff’s Summary Judgment

Application be dismissed with costs.

Dated the 23rd day of January 2017

…………………………………………..
Sasha Jane Rudy Alexander
Solicitors for the Defendant

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This DEFENDANT’S WRITEN SUBMISSION is filed by Messrs Sasha Jane &

Partners, solicitors for the Defendant abovenamed whose address for service is at AL 732,

Academic Building 2, Universiti Teknologi MARA, Shah Alam, Selangor.

TEL 603 80710025

FAX 603 80710000

REF /SJP/31042

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