CKY PACKAGING SERVICES v FREIGHT MARK (M) SDN BHD

Case Significance

Reinforces that Order 18 rule 19 of the Rules of Court 2012 is not the vehicle to resolve disputed facts: whether a course of dealing is a running account or a series of separate transactions — and the limitation consequences that follow — is a triable question that cannot be struck out summarily.

This High Court decision at Shah Alam is an interlocutory appeal against a Sessions Court order striking out a writ, and it holds that a genuinely disputed question of fact must go to trial rather than be disposed of summarily. The plaintiff, a packaging-services business, claimed RM475,671.12 from the defendant, Freight Mark (M) Sdn Bhd, for services rendered — repacking, carton picking, loading and unloading of containers and labour supply — the particulars being set out in an appendix to the statement of claim, and had issued a letter of demand that went unpaid. The defendant applied under Order 18 rule 19(1)(a), (b) and (d) of the Rules of Court 2012 to strike out the writ, contending that the plaintiff had no reasonable cause of action, that the claim was not based on a running-account concept, and that each invoice had to be treated as an independent and distinct transaction rather than part of a continuous series recorded in a running account — a characterisation that bore on whether the claim was time-barred. The Sessions Court struck out the writ, and the plaintiff appealed. The court held that whether the parties' dealings constituted a running account or separate transactions, and whether the invoices formed part of one continuous account, were clearly questions of fact to be ventilated by witnesses at trial, not resolved summarily. Guided by Chung Khiaw Bank Ltd v Tio Chee Hing and Re Vernazza on assessing whether proceedings are vexatious by reference to the whole history of the matter, and by Jasa Keramat Sdn Bhd v Monatech (M) Sdn Bhd on abuse of process, it held that the defendant had failed to show the claim was frivolous, vexatious or an abuse of process, and that the parties' prolonged commercial dealings weighed against summary disposal. Finding the Sessions Court plainly wrong to strike out the claim, the court allowed the appeal with costs of RM3,000, subject to allocatur.