IN THE MAGISTRATES COURT AT MIRI

IN THE STATE OF SARAWAK MALAYSIA

SUMMONS NO : 72-584-2006/3
BETWEEN
AMBANK (M) BHD
(8515-D)

..PLAINTIFF
AND

RICHARD ANAK UNDOM

(770908-13-5273)
GEOFFREY ANDIN AK AGUH
(500102-13-5493)

.DEFENDANTS

RULING (ENCLOSURE 8)
This is a ruling on Plaintiffs application under O26A of the Subordinate Courts Rules
1980 for Summary Judgement against both 1st and 2nd Defendant.
I am satisfied that the procedural and technical aspects of the requirement in applying the
application have been complied and therefore will not be discussed further.
I will go directly to the issues put by both Plaintiff and Defendants in this application. I
have referred to :
a. Statement of claim,
b. Notice of Application and Affidavit In Support ,
c. Affidavit in Opposition,
d. Affidavit in Reply (1) (First Deponent),
e. Affidavit in Reply (1) (Second Deponent),
f. Written submission by Plaintiff,

g. Written submission by Defendants

h. Reply of Submission by Plaintiff,

Based on the application, the issue to be determined is whether the Plaintiff has managed
to show that the defendants has no real defence to the claim. Order 26A Rule 1 is referred
to. I have also referred to SM APPADURAY V R ANANDA [1982] 1 MLJ 292 where it
must be shown that the issues put are bona fide defence that is triable.
I am satisfied that it is not disputed that Plaintiff and Defendants had entered into
facilities agreement for the purchase of vehicle QMH201. The contention by the
defendants is that they deny any amount indebted as alleged by the Plaintiff in the
Statement of Claim.
Based on the application, I have categorized the following issues that should be
scrutinized :
A. Denial of Receipt of Document and Explanation by Defendants :
1. 1st Defendant was not given written statement prior to signing of the Hire
Purchase Agreement (HPA);
2. 1st Defendants denial on receipt of the HPA;
3. 2nd Defendants denial on receipt and explanation of the Guarantee and
Indemnity Agreement;
4. Defendants denial on receipt of the 3 rd and 5th Schedule Notice under Hire
Purchase Act;
5. 2nd Defendants denial on receipt of the letter of demand (LOD);
B. Plaintiffs claim should be against the 3rd Party instead of Defendants.
C. Delay in Filing the Application

A. Denial of Receipt of Document and Explanation by Defendants :

This is a contractual agreement entered by the Plaintiff and Defendants for the purchase
of the vehicle. The contractual agreement is governed the Hire Purchase Act. I have
referred to the affidavit in support and affidavit in reply whereby I am satisfied that :
1. exhibit YKS-1 shows that 1st Defendant has duly received and acknowledged.
Therefore I am not accepting the contention that the 1 st Defendant was not supplied with
the statement. In addition the contention put by the deponent Encik Thomas Ling in
paragraph 5 of his affidavit is not challenged and therefore I am fully satisfied that the
statement was read and explained.;
2. exhibit YKS-4 is sufficient to show the proof that the HPA has been duly delivered and
received to and by the 1st Defendant;
3.exhibit YKS-7 , 8, 10, 11, 12, 13, 14, 15, 16, and 17 show the proof of the service and
receipt of rule 3 and 5 notice;
4. exhibit YKS-21 and 22 show that the indemnity and guarantee letter has been fully
complied of its service and receipt. In addition, the evidence of Encik Thomas Ling in
paragraph 7 of his affidavit is not challenged and therefore accepted;
5. exhibit YKS-23 and 24 show that the demand letter has been fully served and received
by the 2nd Defendant.
B. Plaintiffs claim should be against the 3rd Party instead of Defendants;
I am satisfied that there is no contractual obligation between the Plaintiff and the 3 rd
Party. The defendants stated that vehicle QMH201 had been traded in to the 3 rd Party and
therefore they were no longer liable to pay the balance of the amount due to the Plaintiff
since it was agreed between them that the 3 rd party to continue the payment. In this case,
the 3rd Party failed to honour the obligation to the make the repayment.
I fully understand the problem faced by the Defendant in believing that the 3 rd Party will
continue the payment of the vehicle. However, what transpired between the Defendant
and the 3rd Party is not related to the Plaintiff. Unless there was proper agreement in

securing the payment and transfer of the vehicle, the Defendants principally in legal are
under obligation to the Plaintiff. Their duty has not been discharged against the Plaintiff.
I am of the opinion that the doctrine of Privity of Contract applies here. In referring to
SUWIRI SDN BHD V. GOVERNMENT OF THE STATE OF SABAH [2008] 1 CLJ 123
the doctrine of privity of contract is that as a general rule, a contract cannot confer rights
or impose obligations on strangers to it, ie, persons who are not parties to it.
In the present case, it is incorrect to say that the Plaintiff should proceed his claim against
the 3rd party since the Plaintiff is not privy to the contract made between the Defendants
and the 3rd Party. The Plaintiff does not have any locus against the 3 rd party and most
importantly the agreement between the Plaintiff and the Defendants does not cease upon
the trade in to the 3rd Party.
I am therefore not prepared to accept this argument although I am sympathetic on what
had happened to the Defendants. The 3rd party proceedings and the judgement entered
thereof against the 3rd party is the available remedy on the Defendants. In VALLIAMMAI
ACHI V NACHIAPPA [1957] MLJ 27, CA it is important to note that the 3rd party
proceedings must be dealt separately and independently from the claim by the Plaintiff
against the Defendant. This is because in the 3 rd party proceedings, the Defendants are
considered as the Plaintiff and the 3rd party as the Defendant.

C. Delay in Filing the Application

On the issue of delay, it must relate to the two above issues. I have ruled that there is no
real defence and triable issues put by the Defendants in this case. In the circumstance, the
issue of delay, if exists in this case, shall not be taken into consideration in the application
since the court is satisfied that real defence or triable issues have not been established. I
have agreed with the authority put by the Plaintiff in PERKAPALAN SHAMELIN JAYA
[1997] 3 MLJ 818. In addition, I also refer to SYARIKAT KERJASAMA SERBAGUNA
TUNAS MUDA SUNGAI ARA [1985] 2 MLJ 225 where it is immaterial to consider the
timeframe of filing the application if the affidavit or the statement of defence put does not
show any real defence or triable issues.

Even if the issue of delay to be applied or established, I am satisfied that the delay (if
any) has been fully explained in the affidavit. The case of NG HEE THONG [1995] 1
MLJ 281 applies. I also refer to paragraph 3 of the Affidavit in Support.
As the conclusion, I am satisfied that there is no real defence or triable issues in the case.
It is therefore ordered that the judgement to be allowed to be entered against the
Defendants. Enclosure 8 to be allowed with cost. Cost is ordered to be taxed unless
otherwise agreed.

NASRUL HADI BIN ABDUL GHANI

6th August 2008