High Point Technic SDN BHD V Thrustbar Resources SDN BHD (2021) 1 LNS 2252

[2021] 1 LNS 2252 Legal Network Series
IN THE HIGH COURT OF MALAYA AT KUALA LUMPUR

IN THE FEDERAL TERRITORY OF KUALA LUMPUR
[SUIT NO. WA-22NCvC-316-05/2021]
BETWEEN
HIGH POINT TECHNIC SDN BHD ... PLAINTIFF
AND
THRUSTBAR RESOURCES SDN BHD … DEFENDANT
GROUNDS OF DECISION
Introduction
[1] The Plaintiff (“P”) filed an application vide Enclosure 8 (“Enc

8”) for summary judgment against the Defendant (“D”). Enc 8 is
made under Order 14 of the Rules of Court 2012.
[2] D in turn filed an application vide Enclosure 9 (“Enc 9”) to

strike out P’s Writ of Summons and Statement of Claim (“SOC”). Or
in the alternative that paragraph 14 of the SOC be expunged. Enc 9 is
made under Order 18 rule 19(1)(b), (c) and (d) of the Rules of Court
2012.
[3] I dealt with both Enc 8 and Enc 9 together. I dismissed Enc 9
and did not allow the striking out by D. Instead I allowed Enc 8 and
entered summary judgment against D. Here are the grounds of my
decision.
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Background facts
[4] At the request of D from time to time, P will supply to Borneo

Seaoffshore Engineering Sdn Bhd (“BSOE”) manpower, services and
goods for engineering related purposes. P has supplied to BSOE the
manpower, services and goods as ordered by D (collectively
“Goods”). After supplying the Goods, P has delivered invoices to D
based on the agreed sums (“Invoices”).
[5] P avers that D has failed to make full payment of the sums
owing under the Invoices. According to P, D still owes a sum of
RM1,934,240.30 (“Said Sum”).
[6] It is not in dispute that:
(a) D and/or BSOE had received the Goods;
(b) D had received the Invoices;
(c) D had not raised any objections or made any complaints in

relation to the Goods or the Invoices prior to the
commencement of this action.
Enclosure 9 - Defendant’s striking out application
[7] D filed Enc 9 to strike out the Writ and SOC or paragraph 14 of
the SOC on the ground that P ‘‘pleaded and alluded to in the SOC”
the purported “without prejudice communication” between P and D.
Namely, a letter dated 21.1.2021 from D’s solicitors to P’s solicitors
(“Said Letter”). The Said Letter is exhibited at Exhibit ‘P-6’ of P’s
affidavit affirmed on 11.8.2021 and filed in these proceedings.
[8] Paragraph 14 of the SOC reads:
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“14. On 21.01.2021, the Defendant via its solicitors replied to

Plaintiff’s NOD [i.e. notice of demand dated 31,12.2020] where
the said letter enclosed the Defendant’s Statement of Account
which shows that the outstanding sum overdue by the Defendant
to the Plaintiff is in the sum of RM1,934,240.30 - where the said
sum is consistent with the Due and Outstanding Sum.”
[9] The Said Letter reads:
“Proposal of settlement to the purported demand for

RM1,934,240.30
We act for Thrustbar Resources Sdn Bhd (“our client”).
We refer to your letter dated 31.12.2020. Our Client has also

furnished us with a Statement of Account with your client,
attached (“SOA’’).
The SOA reflects that payments amounting to

RM4,110,786.72 out of the RM6,045,027.02 main balance has
been settled by our client. We are also informed by our client
that due to damage to the platform in relation to our client’s
onwards obligations, our client has not received remuneration
for services rendered and this has crippled our client’s cash
flow.
In view of the above, and current circumstances that requires

no amplification, our client proposes to pay RM500,000.00
payable in five (5) instalments.
Please let us have your client’s agreement to the same.”
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[10] In short, the Said Letter (together with the enclosed Statement
of Account furnished by D) shows that D has admitted that the
outstanding sum due and owing by D to P is the Said Sum. Which is
the amount claimed by P in the instant suit.
[11] It is trite that the court will exercise its discretionary power to
strike out under Order 18 rule 19 of the Rules of Court 2012 only in a
plain and obvious case or where the claim is obviously unsustainable.
The court must be satisfied that there is no reasonable cause of action
or that the claim is frivolous or vexatious. (See the Supreme Court
case of Bandar Builder Sdn Bhd & Ors v. United Malayan Banking
Corporation Berhad [1993] 3 MLJ 36 at 43).
[12] In the present case, I am satisfied that P’s Writ and SOC
discloses a reasonable cause of action. It is far from being a frivolous
or vexatious claim. The instant suit is not a plain and obvious case for
striking out.
Law on ‘without prejudice’ privilege
[13] The court is empowered to strike out the parts of a pleading

which disclose a ‘without prejudice’ communication. However, it
must be determined whether the said communication is entitled to
‘without prejudice’ privilege in the first place. It is trite that a
‘without prejudice’ label on a communication does not, by itself,
grant ‘without prejudice’ privilege to the communication.
[14] In MKC Corporate & Business Advisory Sdn Bhd v. Cubic

Electronics Sdn Bhd & Ors [2015] 11 MLJ 775 at 806-807, the High
Court cited the following:
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“[35] ... without prejudice is not a label which can be used

indiscriminately so as to immunise an act from its normal legal
consequences, where there is no genuine dispute or
negotiation. ”
[15] In other words, the court must consider the substance of the
communication over its form. To qualify for ‘without prejudice’
privilege, the communication must have been made in the course of a
negotiation to settle a dispute.
[16] In Dusun Desaru Sdn Bhd v. Wang Ah Yu [1999] 5 MLJ 449 at

455, the High Court said:
“Two common features must be present before this privileged

communications could be activated:
(a) some individuals must be in dispute and that dispute

led them to negotiate with one another; and
(b) the communication between the parties must contain

suggested terms that would finally lead to the settlement of
the dispute.”
[17] The existence of a genuine dispute and a genuine attempt to

compromise it are essential. In Ho Kai Bun v. Salina Lee May Lee
[2019] MLJU 897, the High Court said (at page 4 of 5):
“[26] At common law, without prejudice privilege applies to

communications made for the purpose of settling a dispute.
Being privileged, such communications are inadmissible. The
without prejudice rule is founded on public policy of
encouraging litigants to settle their differences rather than
litigate them to a finish. The existence of a dispute and the
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attempt to compromise it are at the heart of the without

prejudice rule. The rule therefore does not apply to
communications which have the purpose other than settlement
of a dispute. ”
[18] If no genuine dispute existed at the time the communication was

made, the communication is not entitled to ‘without prejudice’
privilege. As was held in the High Court case of Wong Nget Thau &
Anor v. Tay Choo Foo [1994] 3 MLJ 723 at 734-735 which said:
“I am of the view that Malayan Banking Bhd v. Foo See Moi

does not lay down the proposition that any letter that is marked
‘without prejudice’ is inadmissible irrespective of the
circumstances in which it was issued. The fact that a document
is headed ‘without prejudice’ does not conclusively or
automatically render it privileged from admission in evidence
in any subsequent proceedings and if a claim for such privilege
for the document is challenged the court will look at the
document to determine its nature. The court must in each case,
when deciding whether a particular letter marked ‘without
prejudice’ is admissible, consider whether the letter was part of
a genuine attempt to settle a dispute.
There was no dispute existing at the time of his said letter.

Since there was no dispute, the letter of the said advocate was
not written in an attempt to settle a dispute or in the course of
negotiation. The letter of the said advocate is therefore
admissible”.
[19] The English authority of Avonwick Holdings Limited v.

Webinvest Limited & Anor [2014] EWHC 3322 (Ch) (affirmed on
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appeal to the English Court of Appeal in [2014] EWCA Civ 1436)

provides further clarity on the matter:
“19. For a document to be inadmissible on the grounds that it is

“without prejudice”, it must form part of a genuine attempt to
resolve a dispute. There needs to be both a genuine dispute to be
resolved and a genuine attempt to resolve it. If there is no
dispute about a liability, but only a negotiation as to how and
when it should be discharged, the negotiations, and documents
produced in the course of them, are not covered by the
“without prejudice” exception to the admissibility of relevant
evidence.
35. The issue is whether at the time of the relevant

communications there existed a genuine dispute, and in my view
it is clear that none existed at that time. Communications made
at a time when there is no dispute cannot, with retrospective
effect, be made subject to the without prejudice privilege by
subsequently raising a dispute”.
[20] The ‘without prejudice’ rule should not extend to negotiation on

an admitted liability. The English House of Lords in Bradford &
Bingley pic v. Rashid [2006] 1 WLR 2066 at 2089 emphasised that:
“72. ...If the without prejudice rule is to apply not merely to

attempts to resolve a dispute about the existence or extent of a
liability but also to discussions as to how an admitted liability
is to be paid, that would seem to me a very substantial
enlargement of its scope.
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73. In my opinion the without prejudice rule has no application

to apparently open communications, such as those here,
designed only to discuss the repayment of an admitted liability
rather than to negotiate and compromise a disputed liability. I
find it impossible to regard the correspondence here as
constituting “negotiations genuinely aimed at settlement ” ...or
“an attempt to compromise actual or impending litigation ”. ...
Nor does the underlying public policy justification for the rule
appear to have any application in circumstances such as these.
That justification ... “essentially rests on the desirability of
preventing statements or offers made in the course of
negotiations for settlement being brought before the court of
trial as admissions on the question of liability’’. No “statements
or offers’’ were made here with a view to settling a dispute.
Since the debt was admitted, there was no dispute. ’’
No dispute existed at the time the Said Letter was made
[21] It is my finding that no genuine dispute existed at the time the

Said Letter was issued. In the Said Letter, D proposed to pay a
reduced sum via instalments in settlement of the Said Sum. The
negotiation was directed entirely at the payment of an admitted debt.
[22] The Said Letter was a reply to P’s letter of demand for the Said
Sum. It does not dispute that the Said Sum is outstanding. Instead, it
attached a Statement of Account furnished by D themselves. Which
shows debit and credit entries (ie, invoice amounts and payment
amounts) with the end result of the Said Sum being overdue.
[23] The Said Letter stated:- “The SOA reflects that payments
amounting to RM4,110,786.72 out of the RM6,045,027.02 main
balance has been settled by our client.” This clearly admits that only
8
a sum of RM4,110,786.72 has been paid by D when the total amount

owing was RM6,045,027.02. Offsetting those two figures results in a
sum of RM1,934,240.30 remaining outstanding ie, the Said Sum.
[24] There is no genuine dispute regarding this debt when the Said
Letter was made. Liability was admitted. Since there is no dispute, the
Said Letter was not written in a genuine attempt to settle a dispute or
in the course of negotiation.
[25] I find that the Said Letter only seeks to discuss how the admitted
liability is to be paid. It stated that D was facing cash flow problems,
ostensibly to explain why D had not been able to pay the Said Sum. It
also alluded to “current circumstances that requires no
amplification”, presumably referring to the Covid-19 pandemic that
has adversely affected businesses and the economy. In that light, D
offered to pay a reduced sum of RM500,000 over 5 instalments and
sought P’s agreement to the same.
[26] In my opinion, the Said Letter negotiated the payment of an

admitted liability. The debt itself ie, the Said Sum was not disputed.
Clearly the Said Letter was not issued in the course of negotiating or
compromising a disputed liability. As such, the Said Letter does not
qualify for ‘without prejudice’ privilege, notwithstanding its label.
[27] The English High Court decision of Avonwick (supra) is

instructive. Briefly the facts are that the plaintiff lent the defendants
US$100 million, but the defendants defaulted. The parties engaged in
communications labelled ‘without prejudice’ in which the defendants
admitted liability to the debt. The defendants later disputed liability
during the proceedings. The English High Court held that the
communications although labelled ‘without prejudice’ were not
entitled to without prejudice privilege, stating that:
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“38. I am satisfied on the evidence that throughout the period of

the relevant correspondence no dispute existed between the
parties as to the liability of Webinvest and Mr Shlosberg. The
negotiations were directed entirely at attempting to agree a
restructuring of an admitted liability. It follows, in accordance
with the authorities to which I have referred, that the relevant
communications are not covered by the ‘‘without prejudice”
privilege and are admissible as evidence at the forthcoming
trial. ”
[28] D relied on section 23 of the Evidence Act 1950 which reads:
“23. Admissions in civil cases when relevant
In civil cases no admission is relevant if it is made, either upon

an express condition that evidence of it is not to be given, or
under circumstances from which the court can infer that the
parties agreed together that evidence of it should not be given.”
[29] That however does not take D’s case very far. That provision
merely states a broad principle. It does not negate the common law
principles on ‘without prejudice’ communication as discussed earlier.
[30] It is my conclusion that the Said Letter (and the accompanying

Statement of Account furnished by D) are not ‘without prejudice’
communications. Thus, the Writ and SOC ought not to be struck out
on that ground.
[31] Even if I am wrong in my conclusion, the Writ and the SOC

ought not to be struck out entirely. The court retains the jurisdiction
to only strike out the offending parts of the pleading. In Oh Kuang
Liang v. Associated Wood Ind Sdn Bhd [1995] 4 MLJ 390, the High
Court held that the plaintiff should not have exhibited a without
10
prejudice communication in its affidavit, and only struck out a single

paragraph of the affidavit and the without prejudice communication
exhibited. A similar approach, in my view, can be applied to
pleadings.
[32] If it be the case that the Said Letter is subject to ‘without

prejudice’ privilege, I maintain that only paragraph 14 of the SOC
should be struck out. As that is the only paragraph which discloses the
Said Letter. The rest of the Writ and SOC made no mention of the
Said Letter.
Enclosure 8 - Plaintiff’s summary judgment application
[33] Summary judgment under Order 14 of the Rules of Court 2012

may be granted where the issue is unarguable or not triable.
Especially where the issue raised is solely a question of law or where
the facts are clear and undisputed. The court must assess whether any
assertion or denial raised by the defendant is inherently improbable or
inconsistent with contemporaneous documentary evidence.
[34] In Bank Negara Malaysia v. Mohd Ismail & Ors [1992] 1 MLJ
400 at 408, the Supreme Court said:
“Under an O. 14 application, the duty of a judge does not end

as soon as a fact is asserted by one party, and denied or
disputed by the other in an affidavit. Where such assertion,
denial or dispute is equivocal, or lacking in precision or is
inconsistent with undisputed contemporary documents or other
statements by the same deponent, or is inherently improbable
in itself, then the judge has a duty to reject such assertion or
denial, thereby rendering the issue not triable. In our opinion,
unless this principle is adhered to, a judge is in no position to
11
exercise his discretion judicially in an O . 14 application. Thus,

apart from identifying the issues of fact or law, the court must
go one step further and determine whether they are triable.
This principle is sometimes expressed by the statement that a
complete defence need not be shown. The defence set up need
only show that there is a triable issue.
Where the issue raised is solely a question of law without

reference to any facts or where the facts are clear and
undisputed, the court should exercise its duty under O . 14. If the
legal point is understood and the court is satisfied that it is
unarguable, the court is not prevented from granting summary
judgment merely because ‘the question of law is at first blush of
some complexity and therefore takes a little longer to
understand’.”
[35] This may involve an examination of the affidavits and

documentary evidence to see if there is a fair probability of the
defendant having a real or bona fide defence. Ordinarily conflict of
evidence ought not to be disposed of on affidavit evidence only.
Equally however, affidavit evidence must not be uncritically accepted.
[36] In Wong Nget Thau (supra), the High Court said (at page 735-
736):
“I am of the view that in order to look at the whole situation, as

the just quoted case says, I must surely go through the affidavits
and documentary evidence and I cannot imagine any court doing
that cursorily. Though it is trite law that a conflict of evide nce
ought not to be disposed of on affidavit evidence only, it is also
trite law that the affidavit evidence must not be uncritically
12
accepted and this is what the Privy Council in Eng Mee Yong &
Otherss v. V Letchumanan [1979] 2 MLJ 212 at p 217 said:
Although in the normal way it is not appropriate for a

judge to attempt to resolve conflicts of evidence on
affidavit, this does not mean that he is bound to accept
uncritically, as raising a dispute of fact which calls for
further investigation, every statement on an affidavit
however equivocal, lacking in precision, inconsistent with
undisputed contemporary documents or other statements
by the same deponent, or inherently improbable in itself it
may be.
Therefore, the affidavit evidence would have to be exam ined in

detail to see if ‘there is a fair or reasonable probability of the
defendants having a real or bona fide defence’. I am of the
view that the whole of the evidence has to be looked at, even if it
involves a minute examination of documents and facts, if by such
exercise the court can come to the conclusion that there is no
fair or reasonable probability of the defendants’ having a real
or bona fide defence. ”
[37] Allegations made by the defendant must be supported by some

evidence in order to become triable issues. In Enco Systems Sdn Bhd
v. Soon Hin Hardware Sdn Bhd [2009] 9 MLJ 535 at 545, the High
Court said:
“The court will not find a triable issue for the purpose of
granting leave to defend on the basis of the defendant ’s
allegation alone. There must be some evidence to support the
allegation.”
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[38] Not all issues raised are capable of being a triable issue. In Voo
Min En & Ors v. Leong Chung Fatt [1982] 2 MLJ 241 at 243, the
Federal Court said:
“That being the case, it is not enough for the respondent in

answer to the appellants’ application to sign final judgment, to
raise an issue, or any issue. He must, however, raise such issue
as would require a trial in order to determine it. In other words ,
the issue raised must be an arguable issue. But where the issue
raised is irrelevant and ineffective, or to use the words of Lord
Greene, M.R. in Cow v. Casey [1949] 1 KB 474, 481 “when the
point is understood and the court is satisfied that it is really
unarguable”, the appellants should be entitled to what they
prayed for in the summon-in-chambers. ”
[39] In Tetuan Rajan Navaratnam v. Searie Sdn Bhd & Anor [2015]
MLJU 340, the High Court said (at page 5 of 6):
“It is trite law that not every issue raised is considered triable
to deny the Plaintiff an order of summary judgment where, as in
this case, the claim is plain and obvious. Where the fact denied
is inconsistent with undisputed contemporary documents or
previous conduct or inherently improbable, the issue raised is
not regarded as triable. ”
[40] Summary judgment should be granted in a plain and obvious

case that ought not to go for trial. Especially one that involves
construction of unsubstantial documents and no further facts could
emerge which would throw any light upon the matter. In Esso
Standard Malaya Bhd v. Southern Cross Airways (Malaysia) Bhd
[1972] 1 MLJ 168 at 171, the High Court said:
14
“It is I think right that an order under R.S.C. Order 14 should

be made only if the court thinks it is a plain case and ought not
to go for trial. If one simply has a short matter of construction
with a few documents, the court on summary judgement should
decide what in its judgment is the true construction. There
should be no reason to go formally to trial where no further
facts could emerge which would throw any light upon the letters
that have to be construed.”
No triable issues
[41] D raised the following issues:
(a) there are material discrepancies or deficiencies in the

Invoices, which render the Invoices irregular and
questionable (“First Issue”);
(b) P has wrongly charged D the total disputed amount of

RM615,940 for the Goods even when the Goods were not
in use but were on standby (“Second Issue ”);
(c) P did not disclose the terms of the contract numbered

‘CHO/2018/MA/1001’, which was incorporated by
reference (“Third Issue”);
(d) P did not comply with the requirement to forward soft

copies of the Invoices to the following mailbox:
finances@borneoseaoffshore.com (“Fourth Issue”); and
(e) the disclosure of the Said Letter “taints P’s entire suit
with bias” (“Fifth Issue”).
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[42] The issues raised by D, in my view, are unarguable or not

triable. It is my finding that the allegations made by D are
unsupported by evidence. I reject the assertions and denials of D,
which I find to be inherently improbable and inconsistent with the
contemporaneous documents. I am satisfied that the instant suit is a
plain and obvious case that ought not to go to trial. Here is my
explanation.
Admission via the Said Letter
[43] By the Said Letter (and the accompanying Statement of

Account), D has already admitted liability to P’s claim for the Said
Sum. It seems to me that the allegations or issues raised by D in
resisting P’s claim are mere afterthoughts. Based on the Said Letter
alone, P’s application for summary judgment should be allowed.
[44] Furthermore, D never raised these issues until the

commencement of the instant suit. This is borne out by the following
chronology of events:
Date Event
5.8.2019- The Invoices were issued by P to D.

9.12.2019
31.12.2020 Letter of demand was issued by P to D.
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21.1.2021 D replied via the Said Letter and the enclosed

Statement of Account.
5.5.2021 P filed the Writ and SOC.
16.6.2021 D filed the Statement of Defence (wherein the

First and Second Issues were raised).
P filed Enc 8 - application for summary

28.7.2021 judgment.
11.8.2021 P filed affidavit in support.
D filed affidavit in reply (wherein the Third,

27.8.2021 Fourth and Fifth Issues were raised).
[45] As can be seen from the above, D had more than a year to raise
any protest against the Invoices or its liability to pay the Said Sum.
Yet D never did so until after these proceedings had commenced. I
consider D’s silence to be tantamount to acquiescence. D should have
registered its objection at the earliest possible occasion.
[46] It is not in dispute that D had received the Invoices and had
never raised any objection to any of them. In fact, the respective
amounts of the Invoices are reflected in D’s own Statement of
Account which accompanied the Said Letter, in my view, D is
estopped from denying its liability to pay the Said Sum.
17
First issue
[47] D alleges that there are material discrepancies or deficiencies in

the Invoices, which render the Invoices irregular and questionable
(“Alleged Discrepancy”).
[48] I am of the opinion that a defendant cannot simply assert a

denial of indebtedness without providing proof thereof. It is not
enough for a defendant to merely deny his indebtedness. He must
explain why he is not so indebted.
[49] In HSBC Bank Malaysia Bhd (formerly known as Hong Kong

Bank Malaysia Bhd) v. LH Timber Products Sdn Bhd (formerly known
as Ho Lim Sawmill Sdn Bhd & Ors [2005] 6 MLJ 625 at 634, the High
Court said:
“[22] It is said that in opposing an application for summary

judgment, it is not sufficient for the defendant to merely raise
facts which do not constitute a defence to the claim. The
defendant must do more than that. The defendant cannot assert
a denial of indebtedness without providing proof thereof. ...If
the defendant says that he is not indebted to the plaintiff, the
defendant had to provide an explanation as to why he is not so
indebted. It is not enough for the defendant to merely deny his
indebtedness. ”
[50] It is not enough for a defendant to merely allege a defence in

order to raise a triable issue. He must provide particulars in support of
such defence. In Associated Tractors Sdn Bhd v. PMB (Kulim) Sdn
Bhd & Ors [1989] 1 MLJ 245 at 247, the High Court said:
18
“I do not consider that it is enough for the defendants to merely

refer to the statement of defence without condescending to
particulars to support their contention that they have merits in
their defence.”
[51] In the present case, D failed to particularise or provide any

evidence in respect of any of the Alleged Discrepancy. D could have
easily specified which item(s) of the Invoices that it takes issue with.
But D did not particularise anything of the sort. Instead, all that D
provided was:- (a) a table which specifies the amounts disputed in
each of the Invoices; and (b) Lampiran A of the Statement of Defence,
the contents of which are incomprehensible and does not support D’s
averment of the Alleged Discrepancy in any way.
[52] Notably, all the Invoices are reflected in D’s own Statement of
Account which accompanied the Said Letter. The Statement of
Account captures the date, invoice number and amounts of each of the
Invoices. The Alleged Discrepancy is a bare assertion which is
unsupported by evidence and inconsistent with contemporaneous
documentary evidence. I have no hesitation rejecting the same.
Second Issue
[53] D alleges that P has wrongly charged D the total disputed

amount of RM615,940 for the Goods even when the Goods were not in
use but were on standby.
[54] However, the terms contained in the quotations that were issued
by P to D stipulates that charges will commence from the time that the
Goods leave P’s premises until they are returned. The said quotations
are exhibited at Exhibit ‘P-7’ of P’s affidavit affirmed on 11.8.2021
and filed in these proceedings. The relevant condition reads:
19
“Equipment/tools charges will commence from the time

equipment/tools leave HPTSB’s premises and to be remained on
hire until it is returned of which unit rates shall apply.”
[55] In other words, D is obliged to pay for the Goods once they are
supplied. Regardless of whether they are utilised by D or not. If D
does not utilise the Goods but put them on standby, that is of no
concern to P. The applicable charges are incurred until such time as
the Goods are returned to P. D’s allegation in this regard is devoid of
merit.
Third Issue
[56] D alleges that P did not disclose the terms of the contract
numbered ‘CHO/2018/MA/100T (“Said Contract”), which was
incorporated by reference.
[57] At the outset, it must be pointed out that this issue was not
pleaded in the Statement of Defence. It was only raised in D’s
affidavit in reply that was filed to oppose P’s application for summary
judgment. It is trite that a defendant cannot depart from its pleaded
defence or improve on it by way of affidavit evidence. (See the High
Court cases of SMEB Asset Management Sdn Bhd (yang telah membeli
dan mengambil alih sebahagian daripada akaun milik Small Medium
Enterprise Development Bank Malaysia Bhd dan dahulunya dikenali
sebagai Bank Perusahaan Kecil & Sederhana Malaysia Bhd) v . Rusdi
bin Em bong & Ors [2021] MLJU 647; JEC Designabuild Sdn Bhd v.
Bunga Kembang Sdn Bhd [2006] MLJU 447).
[58] As D never pleaded the facts relating to this issue in its

Statement of Defence, I should disregard the same. For completeness
however, I will briefly address this issue.
20
[59] D complains that P failed to disclose terms relating to the Said

Contract. But D did not particularise the alleged undisclosed terms
nor explain how such undisclosed terms give rise to any triable issue.
[60] I agree with P that all material terms relating to its claim have
been pleaded and the Said Contract has no relevance to its claim. D’s
act of raising the Said Contract is nothing more than an afterthought
and an attempt to distract from the undisputed and established facts.
Namely, D’s obligation to pay the Said Sum in accordance with the
Invoices.
[61] It is noteworthy that the Said Contract was actually referred to

in D’s own document (“Said Document”). The Said Document is
actually a Service Order issued by D to P. It is exhibited at Exhibit
‘P-1’ of P’s affidavit affirmed on 11.8.2021 and filed in these
proceedings. It is entitled ‘Service Order - Order Issued to High Point
Technic Sdn Bhd [ie, P]. D’s name or letterhead appears at the top of
the Said Document, although it is signed by BSOE.
[62] The relevant extract of the Said Document reads:
“This ORDER will be carried out in accordance with the

following documents which are listed in order of precedence and
form part of it.
The purpose of this document intends to establish contract

with High Point Technic Sdn Bhd (hereinafter called
“HPTSB”) [ie, P] for Provision of Nitrogen Pumping at E11RD
PL 325 for Thrustbar Resources Sdn Bhd (hereinafter called
TRSB”) which has been awarded by Borneo SeaOffshore Sdn
21
Bhd (hereinafter called “BSOE”) for the pipeline isolation at

E11RC.
The present ORDER issued by Thrustbar Resources Sdn Bhd

(hereinafter called ‘TRSB”) [ie, D] defines the contractual terms
and conditions which will apply to the service supplied by
HPTSB for the Provision for Nitrogen Pumping at E11RC,
under the same terms and conditions as per the contract for
CHO/2018/M A/1001.”
[63] I would have thought that D ought to be aware of the Said

Contract since they made reference to the same in their own
document. Or if not aware, it should be incumbent on D to find out.
[64] In any event, I consider this allegation to be ineffective. D is

seizing on an incidental reference to the said Contract. But such
reference does not negate the fact that the Goods have been supplied
by P and no objections had been raised by D in relation to the Goods
or the Invoices. It seems that D is grasping at straws here.
Fourth Issue
[65] D alleges that P did not comply with the requirement to forward
soft copies of the Invoices to the following mailbox:
finances@borneoseaoffshore.com. Here again, D did not plead this
issue in the Statement of Defence, and only raised them in its affidavit
in reply. In any event, I find this to be a non-issue. Simply because D
admitted that it had received the Invoices.
“3. PAYMENT CONDITIONS
22
Invoicing
One (1) original and One (1) copy of invoices shall be

forwarded by HPTSB together with the required documents
allowing the control and the approval of the invoices to
Thrustbar Resources Sdn Bhd

Accounts Dept
C-L27-08, KL Trillion, 338 Tun Razak, 50400 Kuala Lumpur
338 Tun Razak, 50400 Kuala Lumpur, Malaysia
Attn: Radiah Abdul Hadi
In addition, one soft copy of the invoice shall be forwarded

by HPTSB together with the required documents to the
following mailbox: finances@borneoseaoffshore.com
Remarks:
Any deviation on the above by HPTSB will invalidate invoice

and any claim from HPTSB for delayed payment will not be
considered.”
[67] According to D, instead of duly forwarding a soft copy of the

Invoices to the given mailbox, P sent the same to
azzizuddin@thrustbar.com.my. I find this allegation to be of little or
no consequence. The fact remains that D had indeed received the
Invoices. That is not in dispute. More importantly, at the material
23
time, D did not raise any objection regarding the Invoices, including
the manner in which they were sent.
[68] The recipient or beneficiary of the Goods i.e. BSOE had duly
acknowledged receipt of the Goods. Again without any reservation.
As such, the payment term stipulated in the Said Document is
fulfilled.
“2. PAYMENT TERM
• The invoice,
• The acknowledgement (AR) of the ORDER,

without any reservation and duly signed by the
HPTSB
• The delivery of the SCOPE OF WORK in accordance

with the terms and conditions of the ORDER.”
[70] D points out the remarks in the Said Document that “any
deviation on the above by HPTSB will invalidate invoice and any
claim from HPTSB for delayed payment will not be considered”
However, it is not D’s pleaded case that the Invoices are invalid. It is
too late anyway for D to say that now. As mentioned earlier, D had
received the Invoices without raising any objection regarding the
same.
[71] D’s complain is merely that P did not forward a soft copy of the
Invoice to the given mailbox. But that does not matter. P has fulfilled
the principal requirement that “one (1) original and one (1) copy of
invoices shall be forwarded by HPTSB together with required
24
documents allowing control & approval of the invoices to” D’s

Accounts Department. Clearly, D had approved the Invoices. Which is
evidenced by the fact that the Invoices are reflected in D’s own
Statement of Account (as regards their respective dates, invoice
numbers and amounts). Again, this seems to be a desperate attempt by
D to raise a triable issue.
The Said Letter
[72] The Said Letter was D’s reply to P’s demand for the Said Sum.
What was D’s response therein?
(a) First Issue: Did D say that that are material

discrepancies or deficiencies in the Invoices? The
answer is no.
(b) Second Issue: Did D claim that P has wrongly

charged for the Goods which were not in use but
were on standby? Likewise the answer is no.
(c) Third Issue: Did D complain that P did not disclose

the terms of the Said Contract? Similarly the answer
is no.
(d) Fourth Issue: Did D point out that P did not comply
with the requirement to forward soft copies of the
Invoices to finances@borneoseaoffshore.com? Again
the answer is no.
(e) Instead, D provided the excuse of cash flow problems

and the Covid-19 pandemic for not paying the Said
25
Sum. D did not dispute the debt and offered to pay a

reduced sum on a staggered basis.
[73] D complains that the disclosure of the Said Letter “taints P’s
entire suit with bias”. Given my finding that the Said Letter is not
subject to ‘without prejudice’ privilege, this is a non-issue. In any
event, this allegation has no relevance in a summary judgment
application. As the paramount issue here is whether there is any
triable issue. My finding is that there is none.
[74] Assuming I were to rule that the Said Letter is subject to

‘without prejudice’ privilege and therefore inadmissible, I would still
be capable of hearing P’s application for summary judgment without
being tainted by bias. Even without the Said Letter, I am satisfied that
a case for summary judgment has been made out based on the other
evidence.
Conclusion
[75] For the reasons above, I dismissed Enc 9 and did not allow the
striking out by D. Instead I allowed P’s application for summary
judgment vide Enc 8. I entered judgment against D in the sum of
RM1,934,240.30. I awarded interest at the rate of 5% per annum on
the judgment sum from the date of the Writ to the date of payment. I
ordered D to pay costs of RM4,000 to P in respect of each enclosure.
Dated: 13 DECEMBER 2021
(QUAY CHEW SOON)

Judicial Commissioner
High Court of Malaya
26
COUNSEL:
For the plaintiff - Kenny Tan Kah Poh; M/s Kenny Tan & Co
For the defendant - Manmohan Singh Kang, S Sathyananthan &

Nazirah Azyan Nazari; M/s Sathya, Lee & Co
Case(s) referred to:
Bandar Builder Sdn Bhd & Ors v. United Malayan Banking

Corporation Berhad [1993] 3 MLJ 36
MKC Corporate & Business Advisory Sdn Bhd v. Cubic Electronics
Sdn Bhd & Ors [2015] 11 MLJ 775
Dusun Desaru Sdn Bhd v. Wang Ah Yu [1999] 5 MLJ 449
Ho Kai Bun v. Salina Lee May Lee [2019] MLJU 897

Wong Nget Thau & Anor v. Tay Choo Foo [1994] 3 MLJ 723
Avonwick Holdings Limited v. Webinvest Limited & Anor [2014]

EWHC 3322 (Ch); [2014] EWCA Civ 1436
Bradford & Bingley pic v. Rashid [2006] 1 WLR 2066
Oh Kuang Liang v. Associated Wood Ind Sdn Bhd [1995] 4 MLJ 390
Bank Negara Malaysia v. Mohd Ismail & Ors [1992] 1 MLJ 400
Enco Systems Sdn Bhd v. Soon Hin Hardware Sdn Bhd [2009] 9
MLJ 535
Voo Min En & Ors v. Leong Chung Fatt [ 1982] 2 MLJ 241
Tetuan Rajan Navaratnam v. Searie Sdn Bhd & Anor [2015] MLJU
340
Esso Standard Malaya Bhd v. Southern Cross Airways (Malaysia)

Bhd [1972] 1 MLJ 168
27
HSBC Bank Malaysia Bhd (formerly known as Hong Kong Bank
Malaysia Bhd) v. LH Timber Products Sdn Bhd (formerly known as
Ho Lim Sawmill Sdn Bhd & Ors [2005] 6 MLJ 625
Associated Tractors Sdn Bhd v. PMB (Kulim) Sdn Bhd & Ors [1989]
1 MLJ 245
SMEB Asset Management Sdn Bhd (yang te lah membeli dan

mengambil alih sebahagian daripada akaun milik Small Medium
Enterprise Development Bank Malaysia Bhd dan dahulunya dikenali
sebagai Bank Perusahaan Kecil & Sederhana Malaysia Bhd) v.
Rusdi bin Embong & Ors [2021] MLJU 647
JEC Designabuild Sdn Bhd v. Bunga Kembang Sdn Bhd [2006]

MLJU 447
Legislation referred to:
Evidence Act 1950, s. 23
Rules of Court 2012, O. 14, O. 18 r. 19(1)(b), (c), (d)
28

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High Point Technic SDN BHD V Thrustbar Resources SDN BHD (2021) 1 LNS 2252

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[2021] 1 LNS 2252 Legal Network Series

IN THE HIGH COURT OF MALAYA AT KUALA LUMPUR

HIGH POINT TECHNIC SDN BHD ... PLAINTIFF

THRUSTBAR RESOURCES SDN BHD … DEFENDANT

[1] The Plaintiff (“P”) filed an application vide Enclosure 8 (“Enc

[2] D in turn filed an application vide Enclosure 9 (“Enc 9”) to

[4] At the request of D from time to time, P will supply to Borneo

[6] It is not in dispute that:

(a) D and/or BSOE had received the Goods;

(b) D had received the Invoices;

(c) D had not raised any objections or made any complaints in

Enclosure 9 - Defendant’s striking out application

[8] Paragraph 14 of the SOC reads:

“14. On 21.01.2021, the Defendant via its solicitors replied to

[9] The Said Letter reads:

“Proposal of settlement to the purported demand for

We act for Thrustbar Resources Sdn Bhd (“our client”).

We refer to your letter dated 31.12.2020. Our Client has also

The SOA reflects that payments amounting to

In view of the above, and current circumstances that requires

Please let us have your client’s agreement to the same.”

Law on ‘without prejudice’ privilege

[13] The court is empowered to strike out the parts of a pleading

[14] In MKC Corporate & Business Advisory Sdn Bhd v. Cubic

“[35] ... without prejudice is not a label which can be used

[16] In Dusun Desaru Sdn Bhd v. Wang Ah Yu [1999] 5 MLJ 449 at

“Two common features must be present before this privileged

(a) some individuals must be in dispute and that dispute

(b) the communication between the parties must contain

[17] The existence of a genuine dispute and a genuine attempt to

“[26] At common law, without prejudice privilege applies to

attempt to compromise it are at the heart of the without

[18] If no genuine dispute existed at the time the communication was

“I am of the view that Malayan Banking Bhd v. Foo See Moi

There was no dispute existing at the time of his said letter.

[19] The English authority of Avonwick Holdings Limited v.

appeal to the English Court of Appeal in [2014] EWCA Civ 1436)

“19. For a document to be inadmissible on the grounds that it is

35. The issue is whether at the time of the relevant

[20] The ‘without prejudice’ rule should not extend to negotiation on

“72. ...If the without prejudice rule is to apply not merely to

73. In my opinion the without prejudice rule has no application

No dispute existed at the time the Said Letter was made

[21] It is my finding that no genuine dispute existed at the time the

a sum of RM4,110,786.72 has been paid by D when the total amount

[26] In my opinion, the Said Letter negotiated the payment of an

[27] The English High Court decision of Avonwick (supra) is

“38. I am satisfied on the evidence that throughout the period of

[28] D relied on section 23 of the Evidence Act 1950 which reads:

“23. Admissions in civil cases when relevant

In civil cases no admission is relevant if it is made, either upon

[30] It is my conclusion that the Said Letter (and the accompanying

[31] Even if I am wrong in my conclusion, the Writ and the SOC

prejudice communication in its affidavit, and only struck out a single

[32] If it be the case that the Said Letter is subject to ‘without

Enclosure 8 - Plaintiff’s summary judgment application

[33] Summary judgment under Order 14 of the Rules of Court 2012

“Under an O. 14 application, the duty of a judge does not end

exercise his discretion judicially in an O . 14 application. Thus,

Where the issue raised is solely a question of law without

[35] This may involve an examination of the affidavits and

“I am of the view that in order to look at the whole situation, as