TAY TRAVEL SERVICE (SANDAKAN) SDN BHD vs SABAH INTERNATIONAL DAIRIES (MJLR 2009 a9) YEW JEN KIE, SS
[CAS 12-01 OF 2009]
1
1 MALAYSIA
2 IN THE HIGH COURT OF SABAH AND SARAWAK
3 AT SANDAKAN
4 CIVIL SUIT NO. S 12-01 OF 2009
5 BETWEEN
6 TAY TRAVEL SERVICE (SANDAKAN) SDN BHD … APPELLANTS
7 AND
8 SABAH INTERNATIONAL DAIRIES … RESPONDENTS
9
10 [In The Matter Of the Sessions Court at Sandakan
11 Summons No. 52-145 Of 2008]
12
13 BETWEEN
14 TAY TRAVEL SERVICE (SANDAKAN) SDN BHD … PLAINTIFFS
15 AND
16 SABAH INTERNATIONAL DAIRIES … DEFENDANTS
17
18 RULING
19
20 1. Appellant/Plaintiffs (“the Plaintiffs”) commenced a suit action
21 against the Respondents/Defendants (“the Defendants”) claiming
22 that at all material times the plaintiffs sold and delivered air tickets
23 and/or rendered goods and services to the Defendants. As at 19
[CAS 12-01 OF 2009]
-2-
September 2005 a sum of RM49,145.55 is due 1 and owing from the
2 defendants to the plaintiffs in respect of the above-mentioned sale
3 and delivery based on the account stated between the parties
4 and/or admitted or acknowledged by the defendants to be due and
5 owing to the plaintiffs, in writing.
6
7
2. This is denied by the defendants. By the notice of application
8 dated 2 September 2008 made under Order 14, Rule 21(1)(b)
9 and/or (d) of the Subordinate Courts Rules 1980, the defendants
10 sought to strike out the plaintiffs’ statement of claim on the grounds
11 that it is frivolous and vexatious; and it is an abuse of the process
12 of the Court. The defendants relied on the ground that the
13 plaintiffs’ action is barred by limitation pursuant to section 3 read
14 together with section 19 of the Limitation Ordinance (Sabah Cap
15 72).
16
17
3. On 23 December 2008, the learned Sessions Judge granted the
18 order pursuant to the defendants’ notice of application. The
19 plaintiffs are now appealing against that decision.
20
21 Issues
22
4. There is only one issue which concerns the court in this appeal and
23 it is whether the plaintiffs’ action is statute barred.
24
25 Parties’ Contentions
26
5. In contending that the plaintiffs’ claim is barred by limitation of time,
27 the defendants submitted that the last invoice, that is, Invoice No.
28 INV25564 forwarded by the plaintiffs to the defendants dated 18
29
December 2000 stated that the credit terms of payment was sixty
[CAS 12-01 OF 2009]
3
days, meaning the payment on INV25564 was 1 due on 18 February
2
2001 at the earliest. For the purpose of limitation, the period began
3 to run from 19 February 2001.
4
5
6. Reliance is placed on the following Items of the Schedule to the
6 Limitation Ordinance (Sabah Cap 72):
7
8 Item 27 which provide three years limitation period for the price for
9 work done by the plaintiffs for the defendants at his request, where
10 no time has been fixed for payment, and the limitation period
11 commenced when the work is done.
12
13 Item 24 which provide three years limitation period for the price of
14 goods sold and delivered to be paid for after the expiry of a fixed
15 period of credit, and the limitation period commences when the
16 period of credit expires.
17
18 Item 94 which provides three years limitation period for
19 compensation for the breach of any contract, express or implied,
20 not in writing and not herein specially provides for.
The limitation
21 period commences when the contract is broken, or, where there
22 are successive breaches, when the breach in respect of which the
23 suit is instituted occurs, or, where the breach is continuing, when it
24 ceases.
25
26
7. It was submitted that the plaintiffs’ claim would have become
27 barred by limitation on 19 February 2004 which is three years from
28
19 February 2001. The plaintiffs’ action filed on 24 April 2008 is
29 clearly time-barred.
[CAS 12-01 OF 2009]
4
8. The plaintiffs contended otherwise. It is their contention 1 that the
2 plaintiffs’ claim is based on an account stated between the parties
3 which was admitted and acknowledged by the defendants in their
4 letter dated 19 September 2005 i.e. AA-5, to be due and owing to
5 the plaintiffs. Pursuant to Item 46 of the Schedule to the Limitation
6 Ordinance, the period of limitation of three years only starts to run
7 from the defendants’ letter of admission/acknowledgement dated
8
19 September 2005 i.e. “AA-5”, and expired on 19 September
9
2008. Therefore the plaintiffs’ claim is not time-barred as it was
10
commenced on 24 April 2008.
11
12 What is Account Stated?
9. Halsbury’s Law of England (4th 13 Edition) Vol. 9 Paragraph 591
14 defines “Account Stated” as:
15 “The expression “account stated” is sometimes given to a
16 transaction whereby general items of claim between the
17 parties are brought into account on either side, and, a
18 balance between them is struck. The result is then the same
19 as if each item had been paid and a discharge given for each
20 and in consideration of that discharge the balance is agreed
21 to be due. The consideration for the payment of the balance
22 is the discharge of the items on each side.”
23
24
10. In paragraph 698 of Halsbury’s a further explanation of “Account
25 Stated” is given as follows:
26 “First, a claim by one party which is admitted by the other
27 party to be correct is termed as account stated. In this sense
28 it is no more than an admission of a debt out of court; and
29 while it is no doubt cogent evidence against the admitting
[CAS 12-01 OF 2009]
5
party, and throws upon him the burden of 1 proving that the
2 debt is not due, it may, like any other admission, be shown to
3 have been made in error. Where the transaction is of this
4 character, the agreement is without consideration and
5 amounts to no more than an admission. Secondly, there is a
6 “real account stated”, where the account contains items both
7 of credit and debit, and the figures on both sides are adjusted
8 between the parties and a balance struck. It is in connection
9 with an account stated of this character that the equitable
10 doctrine of “settled accounts” has to be considered.
Thirdly,
11 there is an account stated where a claim has been made by
12 one party, and the other party has for valuable consideration
13 agreed to accept it as correct. The consideration may be a
14 reduction of the claim, a consent to wait for payment, or any
15 other matter involving a consideration for the agreement to
16 pay. This is a real agreed account, and according to English
17 law cannot be reopened except for fraud and on some other
18 grounds which would enable a party to an agreement to have
19 it set aside.
20 It seems clear that the second and third categories therefore
21 properly belong to the field of contract rather than quasi
22 contract, and should perhaps better be regarded as being
23 similar to accord and satisfaction. On the other hand, the first
24 category is merely an admission, which raises a rule of
25 evidence.”
26
27 Decision
28
11. The letter dated 19 September 2005 i.e. AA-5 relied upon by the
29 plaintiffs to found a cause of action reads:
[CAS 12-01 OF 2009]
6
1 “Dear Sirs,
2 TAY TRAVEL SERVICE (SDK) SDN BHD – AUDIT
3 CONFIRMATION
4 Your audit confirmation request on RM51,743.00 due to your
5 client, Messrs TAY TRAVEL SERVICE (SDK) SDN. BHD as at 31st
6 December 2004 refers.
7 We hereby confirm that we do not agree with the record of
8 your client, Messrs TAY TRAVEL (SDK) SDN. BHD. and the
9 actual amount due was RM49,145.55, a copy of the
10 breakdown is attached for your reference.
11 Yours faithfully
12 [signature]
13 Datuk A. Arul
14 General Manager”
15
16
12. The “breakdown” referred to in exhibit AA-5 is the
General Ledger
17 Report which, according to the defendants, is based on the records
18 available. The defendants contended that the General Ledger
19 Report is not statement of accounts of the alleged mutual debt.
20
21
13. To my mind, the General Ledger Report which is prepared based
22 on the records available is an account showing the “Debit” on the
23 one side and “Credit” on the other, and then the balance struck
24 between the parties. For example:
25
26 “Creditor Code & Name
27 Date Voucher No. Description Debit(RM) Credit(RM) Posted Balance(RM)
28 ITS Tay Travel Service (S’kan) S/B
29 B/F 00 00
30
31-Dec-1999 OB00186AP 0177 (40,930.44) Yes (40,930.44)
31
01-Jan-2000 JV JV/126 Yr1999 50,766.99 No 9,836.55
32 …
[CAS 12-01 OF 2009]
7
1 …
2 17-Mar-2000 PL202/3 23233 963.00 No 24.129.55
3 18-Mar-2000 JVJVDec00a a/c paid SCB
4 -SID A/C 500199 9,580.00 No 14,549.55
5 …
6 …
7 …
8 …
9
15-Dec-2000 PV sb12/0122 Inv 23536….. 3,066.00 No 80,268.55
10
11
18-Dec-2000 PL0121/12 255564-Mr
12 Wong F Fung 194.00 No 80,268.55.
13
01-Feb-2001 PL0121/12 SDN05/02/01
14 -contra a/c
15 with Senwara
16 Dev.- Payment
17 made by Belus
18 S/B DN#1/2/01 20,000.00 No 60,462.55
19 26-feb-2002 PL02/02/068a ACPM3/2/02-
20 contra a/c with
21 APCM(Tay
22 Travel receipt
23 #1174) 10,000.00 No 50,462.55
24
31-Dec-2002 PL Its Its-Amount Adj:
25 paid by S’kan:
26 SIP 1,317.00 No. 49,145.55
27 --------------------------------------
28 66,695.00 115,840.55
29 ---------------------------------------
30 Total 66,695.00 115,840.55 49,145.55
31 =================== ========
32
33
14. The Creditors Ledger Report as reproduced above would appear to
34 support the plaintiffs’ averment in paragraph 6 of the Affidavit in
35 Opposition (page 29 Record of Appeal) that lump sums were paid
36 into the account as a whole instead of by each individual
37 transactions. The defendants merely denied this allegation. This
[CAS 12-01 OF 2009]
8
denial however flies in the face of the Creditors 1 Ledger Report
2 prepared by the defendants themselves.
3
4
15. The Creditors Ledger Report amply shows the mutual debt
5 between the parties and the setting off/ discharging/adjusting
6 RM66,695.00 against the total debt of RM115,840.55 to strike up a
7 balance of RM49,145.55. This clearly befits the description of
8 “Account Stated” given by Halsbury, supra, namely, “Items of credit
9 and debit, and the figures on both sides are adjusted between the
10 parties and a balance struck”
11
12
16. Defendants next contended that the Plaintiffs have not pleaded
13 “mutual debt” or that “the debit and credit and the figures of both
14 parties have been adjusted and a balance struck” in the pleading.
15 The short answer is that there is no need to plead legal principles.
16 The plaintiffs have pleaded the material fact that its claim is based
17 on the Account Stated by the Defendants’ own letter i.e. AA-5.
18
19
17. The defendants also contended that the plaintiffs have shifted its
20 case. The plaintiffs pleaded that it is the letter of the defendants
21 dated 19 September 20005 which allegedly constitutes the so
22 called “Account Stated” and not the Creditors Ledger Listing. Now
23 they are contenting that the Defendants’ Creditors Ledger Report
24 constitutes an “Account Stated”.
25
26
18. I see no merit in this contention. It should be noted that the
27 plaintiffs has clearly pleaded their reliance on the Creditors Ledger
28 Report in paragraph 5 of the statement of claim as follows:
29
[CAS 12-01 OF 2009]
9
“The writing referred to in the preceding paragraph 1 comprises of
2 the Defendants’ letter dated 19 September 2005 to the plaintiffs’
3 accountants and authorized agents, M/s Quek & Company, and the
4 enclosed Confirmation and the Defendants’ Creditors Ledger
5 Report therein.”
6
7
19. The defendants next contended that: “Item 46 of the Schedule to
8 the Sabah Limitation Ordinance applies only to the case of a “true
9 account stated” which is not the case here. The limitation period of
10 3 years begins to run from “when the accounts are stated in writing
11 signed by the Defendants or his agent duly authorized in this
12 behalf, unless where the debt is, by a simultaneous agreement in
13 writing signed as aforesaid, made payable at a future time, and
14 then when that time arrives.”
15
16
20. It is also submitted that the documents relied on by the plaintiffs are
17 “most definitely not of the nature of a “true” or “real” account
18 stated”. These documents are the inhouse records of the
19 defendants in the form of a “creditor Ledger Report”.
There is no
20 question of any “mutual debts” between the plaintiffs and the
21 defendants.
22
23
21. I see no merit in the above contentions. It is the defendants’ own
24 admission that the Creditors Ledger Report is based on the records
25 available. From those records all the items of claim were brought to
26 account, it reflected mutual debts between the parties, it itemized
27 the credits and the debits account between the parties and how
28 the balance of RM49,145.55 is derived by setting off/adjusting/
[CAS 12-01 OF 2009]
10
discharging the mutual accounts. This is
1 to me true account
2 stated.
3
4
22. Thus, pursuant to Item 46 of the Schedule to the Sabah Limitation
5 Act. The plaintiffs’ action which commenced on 24 April 2008 is
6 not time-barred.
7
8 Conclusion
9
23. For all the reasons aforesaid, I allowed the appeal by setting aside
10 the order of allowing the defendants’ notice of application.
11
12
24. Costs of this appeal be to the plaintiffs to be taxed unless agreed.
13
14
15 SIGNED.
YA PUAN YEW JEN KIE
16 Judicial Commissioner
17 High Court, Sandakan.
Dated: 22nd 18 June 2009
19
20 For Plaintiffs/Appellants: Mr Chen Kok On
21 Messrs Peter Lo & Co
22
23 For Defendants/Respondents: Mr Govinda Raj
24 Raj & Co.
25
26
27 Notice: This copy of the Court’s Reasons for judgment is subject to
28 formal revision.
1
1 MALAYSIA
2 IN THE HIGH COURT OF SABAH AND SARAWAK
3 AT SANDAKAN
4 CIVIL SUIT NO. S 12-01 OF 2009
5 BETWEEN
6 TAY TRAVEL SERVICE (SANDAKAN) SDN BHD … APPELLANTS
7 AND
8 SABAH INTERNATIONAL DAIRIES … RESPONDENTS
9
10 [In The Matter Of the Sessions Court at Sandakan
11 Summons No. 52-145 Of 2008]
12
13 BETWEEN
14 TAY TRAVEL SERVICE (SANDAKAN) SDN BHD … PLAINTIFFS
15 AND
16 SABAH INTERNATIONAL DAIRIES … DEFENDANTS
17
18 RULING
19
20 1. Appellant/Plaintiffs (“the Plaintiffs”) commenced a suit action
21 against the Respondents/Defendants (“the Defendants”) claiming
22 that at all material times the plaintiffs sold and delivered air tickets
23 and/or rendered goods and services to the Defendants. As at 19
[CAS 12-01 OF 2009]
-2-
September 2005 a sum of RM49,145.55 is due 1 and owing from the
2 defendants to the plaintiffs in respect of the above-mentioned sale
3 and delivery based on the account stated between the parties
4 and/or admitted or acknowledged by the defendants to be due and
5 owing to the plaintiffs, in writing.
6
7
2. This is denied by the defendants. By the notice of application
8 dated 2 September 2008 made under Order 14, Rule 21(1)(b)
9 and/or (d) of the Subordinate Courts Rules 1980, the defendants
10 sought to strike out the plaintiffs’ statement of claim on the grounds
11 that it is frivolous and vexatious; and it is an abuse of the process
12 of the Court. The defendants relied on the ground that the
13 plaintiffs’ action is barred by limitation pursuant to section 3 read
14 together with section 19 of the Limitation Ordinance (Sabah Cap
15 72).
16
17
3. On 23 December 2008, the learned Sessions Judge granted the
18 order pursuant to the defendants’ notice of application. The
19 plaintiffs are now appealing against that decision.
20
21 Issues
22
4. There is only one issue which concerns the court in this appeal and
23 it is whether the plaintiffs’ action is statute barred.
24
25 Parties’ Contentions
26
5. In contending that the plaintiffs’ claim is barred by limitation of time,
27 the defendants submitted that the last invoice, that is, Invoice No.
28 INV25564 forwarded by the plaintiffs to the defendants dated 18
29
December 2000 stated that the credit terms of payment was sixty
[CAS 12-01 OF 2009]
3
days, meaning the payment on INV25564 was 1 due on 18 February
2
2001 at the earliest. For the purpose of limitation, the period began
3 to run from 19 February 2001.
4
5
6. Reliance is placed on the following Items of the Schedule to the
6 Limitation Ordinance (Sabah Cap 72):
7
8 Item 27 which provide three years limitation period for the price for
9 work done by the plaintiffs for the defendants at his request, where
10 no time has been fixed for payment, and the limitation period
11 commenced when the work is done.
12
13 Item 24 which provide three years limitation period for the price of
14 goods sold and delivered to be paid for after the expiry of a fixed
15 period of credit, and the limitation period commences when the
16 period of credit expires.
17
18 Item 94 which provides three years limitation period for
19 compensation for the breach of any contract, express or implied,
20 not in writing and not herein specially provides for.
The limitation
21 period commences when the contract is broken, or, where there
22 are successive breaches, when the breach in respect of which the
23 suit is instituted occurs, or, where the breach is continuing, when it
24 ceases.
25
26
7. It was submitted that the plaintiffs’ claim would have become
27 barred by limitation on 19 February 2004 which is three years from
28
19 February 2001. The plaintiffs’ action filed on 24 April 2008 is
29 clearly time-barred.
[CAS 12-01 OF 2009]
4
8. The plaintiffs contended otherwise. It is their contention 1 that the
2 plaintiffs’ claim is based on an account stated between the parties
3 which was admitted and acknowledged by the defendants in their
4 letter dated 19 September 2005 i.e. AA-5, to be due and owing to
5 the plaintiffs. Pursuant to Item 46 of the Schedule to the Limitation
6 Ordinance, the period of limitation of three years only starts to run
7 from the defendants’ letter of admission/acknowledgement dated
8
19 September 2005 i.e. “AA-5”, and expired on 19 September
9
2008. Therefore the plaintiffs’ claim is not time-barred as it was
10
commenced on 24 April 2008.
11
12 What is Account Stated?
9. Halsbury’s Law of England (4th 13 Edition) Vol. 9 Paragraph 591
14 defines “Account Stated” as:
15 “The expression “account stated” is sometimes given to a
16 transaction whereby general items of claim between the
17 parties are brought into account on either side, and, a
18 balance between them is struck. The result is then the same
19 as if each item had been paid and a discharge given for each
20 and in consideration of that discharge the balance is agreed
21 to be due. The consideration for the payment of the balance
22 is the discharge of the items on each side.”
23
24
10. In paragraph 698 of Halsbury’s a further explanation of “Account
25 Stated” is given as follows:
26 “First, a claim by one party which is admitted by the other
27 party to be correct is termed as account stated. In this sense
28 it is no more than an admission of a debt out of court; and
29 while it is no doubt cogent evidence against the admitting
[CAS 12-01 OF 2009]
5
party, and throws upon him the burden of 1 proving that the
2 debt is not due, it may, like any other admission, be shown to
3 have been made in error. Where the transaction is of this
4 character, the agreement is without consideration and
5 amounts to no more than an admission. Secondly, there is a
6 “real account stated”, where the account contains items both
7 of credit and debit, and the figures on both sides are adjusted
8 between the parties and a balance struck. It is in connection
9 with an account stated of this character that the equitable
10 doctrine of “settled accounts” has to be considered.
Thirdly,
11 there is an account stated where a claim has been made by
12 one party, and the other party has for valuable consideration
13 agreed to accept it as correct. The consideration may be a
14 reduction of the claim, a consent to wait for payment, or any
15 other matter involving a consideration for the agreement to
16 pay. This is a real agreed account, and according to English
17 law cannot be reopened except for fraud and on some other
18 grounds which would enable a party to an agreement to have
19 it set aside.
20 It seems clear that the second and third categories therefore
21 properly belong to the field of contract rather than quasi
22 contract, and should perhaps better be regarded as being
23 similar to accord and satisfaction. On the other hand, the first
24 category is merely an admission, which raises a rule of
25 evidence.”
26
27 Decision
28
11. The letter dated 19 September 2005 i.e. AA-5 relied upon by the
29 plaintiffs to found a cause of action reads:
[CAS 12-01 OF 2009]
6
1 “Dear Sirs,
2 TAY TRAVEL SERVICE (SDK) SDN BHD – AUDIT
3 CONFIRMATION
4 Your audit confirmation request on RM51,743.00 due to your
5 client, Messrs TAY TRAVEL SERVICE (SDK) SDN. BHD as at 31st
6 December 2004 refers.
7 We hereby confirm that we do not agree with the record of
8 your client, Messrs TAY TRAVEL (SDK) SDN. BHD. and the
9 actual amount due was RM49,145.55, a copy of the
10 breakdown is attached for your reference.
11 Yours faithfully
12 [signature]
13 Datuk A. Arul
14 General Manager”
15
16
12. The “breakdown” referred to in exhibit AA-5 is the
General Ledger
17 Report which, according to the defendants, is based on the records
18 available. The defendants contended that the General Ledger
19 Report is not statement of accounts of the alleged mutual debt.
20
21
13. To my mind, the General Ledger Report which is prepared based
22 on the records available is an account showing the “Debit” on the
23 one side and “Credit” on the other, and then the balance struck
24 between the parties. For example:
25
26 “Creditor Code & Name
27 Date Voucher No. Description Debit(RM) Credit(RM) Posted Balance(RM)
28 ITS Tay Travel Service (S’kan) S/B
29 B/F 00 00
30
31-Dec-1999 OB00186AP 0177 (40,930.44) Yes (40,930.44)
31
01-Jan-2000 JV JV/126 Yr1999 50,766.99 No 9,836.55
32 …
[CAS 12-01 OF 2009]
7
1 …
2 17-Mar-2000 PL202/3 23233 963.00 No 24.129.55
3 18-Mar-2000 JVJVDec00a a/c paid SCB
4 -SID A/C 500199 9,580.00 No 14,549.55
5 …
6 …
7 …
8 …
9
15-Dec-2000 PV sb12/0122 Inv 23536….. 3,066.00 No 80,268.55
10
11
18-Dec-2000 PL0121/12 255564-Mr
12 Wong F Fung 194.00 No 80,268.55.
13
01-Feb-2001 PL0121/12 SDN05/02/01
14 -contra a/c
15 with Senwara
16 Dev.- Payment
17 made by Belus
18 S/B DN#1/2/01 20,000.00 No 60,462.55
19 26-feb-2002 PL02/02/068a ACPM3/2/02-
20 contra a/c with
21 APCM(Tay
22 Travel receipt
23 #1174) 10,000.00 No 50,462.55
24
31-Dec-2002 PL Its Its-Amount Adj:
25 paid by S’kan:
26 SIP 1,317.00 No. 49,145.55
27 --------------------------------------
28 66,695.00 115,840.55
29 ---------------------------------------
30 Total 66,695.00 115,840.55 49,145.55
31 =================== ========
32
33
14. The Creditors Ledger Report as reproduced above would appear to
34 support the plaintiffs’ averment in paragraph 6 of the Affidavit in
35 Opposition (page 29 Record of Appeal) that lump sums were paid
36 into the account as a whole instead of by each individual
37 transactions. The defendants merely denied this allegation. This
[CAS 12-01 OF 2009]
8
denial however flies in the face of the Creditors 1 Ledger Report
2 prepared by the defendants themselves.
3
4
15. The Creditors Ledger Report amply shows the mutual debt
5 between the parties and the setting off/ discharging/adjusting
6 RM66,695.00 against the total debt of RM115,840.55 to strike up a
7 balance of RM49,145.55. This clearly befits the description of
8 “Account Stated” given by Halsbury, supra, namely, “Items of credit
9 and debit, and the figures on both sides are adjusted between the
10 parties and a balance struck”
11
12
16. Defendants next contended that the Plaintiffs have not pleaded
13 “mutual debt” or that “the debit and credit and the figures of both
14 parties have been adjusted and a balance struck” in the pleading.
15 The short answer is that there is no need to plead legal principles.
16 The plaintiffs have pleaded the material fact that its claim is based
17 on the Account Stated by the Defendants’ own letter i.e. AA-5.
18
19
17. The defendants also contended that the plaintiffs have shifted its
20 case. The plaintiffs pleaded that it is the letter of the defendants
21 dated 19 September 20005 which allegedly constitutes the so
22 called “Account Stated” and not the Creditors Ledger Listing. Now
23 they are contenting that the Defendants’ Creditors Ledger Report
24 constitutes an “Account Stated”.
25
26
18. I see no merit in this contention. It should be noted that the
27 plaintiffs has clearly pleaded their reliance on the Creditors Ledger
28 Report in paragraph 5 of the statement of claim as follows:
29
[CAS 12-01 OF 2009]
9
“The writing referred to in the preceding paragraph 1 comprises of
2 the Defendants’ letter dated 19 September 2005 to the plaintiffs’
3 accountants and authorized agents, M/s Quek & Company, and the
4 enclosed Confirmation and the Defendants’ Creditors Ledger
5 Report therein.”
6
7
19. The defendants next contended that: “Item 46 of the Schedule to
8 the Sabah Limitation Ordinance applies only to the case of a “true
9 account stated” which is not the case here. The limitation period of
10 3 years begins to run from “when the accounts are stated in writing
11 signed by the Defendants or his agent duly authorized in this
12 behalf, unless where the debt is, by a simultaneous agreement in
13 writing signed as aforesaid, made payable at a future time, and
14 then when that time arrives.”
15
16
20. It is also submitted that the documents relied on by the plaintiffs are
17 “most definitely not of the nature of a “true” or “real” account
18 stated”. These documents are the inhouse records of the
19 defendants in the form of a “creditor Ledger Report”.
There is no
20 question of any “mutual debts” between the plaintiffs and the
21 defendants.
22
23
21. I see no merit in the above contentions. It is the defendants’ own
24 admission that the Creditors Ledger Report is based on the records
25 available. From those records all the items of claim were brought to
26 account, it reflected mutual debts between the parties, it itemized
27 the credits and the debits account between the parties and how
28 the balance of RM49,145.55 is derived by setting off/adjusting/
[CAS 12-01 OF 2009]
10
discharging the mutual accounts. This is
1 to me true account
2 stated.
3
4
22. Thus, pursuant to Item 46 of the Schedule to the Sabah Limitation
5 Act. The plaintiffs’ action which commenced on 24 April 2008 is
6 not time-barred.
7
8 Conclusion
9
23. For all the reasons aforesaid, I allowed the appeal by setting aside
10 the order of allowing the defendants’ notice of application.
11
12
24. Costs of this appeal be to the plaintiffs to be taxed unless agreed.
13
14
15 SIGNED.
YA PUAN YEW JEN KIE
16 Judicial Commissioner
17 High Court, Sandakan.
Dated: 22nd 18 June 2009
19
20 For Plaintiffs/Appellants: Mr Chen Kok On
21 Messrs Peter Lo & Co
22
23 For Defendants/Respondents: Mr Govinda Raj
24 Raj & Co.
25
26
27 Notice: This copy of the Court’s Reasons for judgment is subject to
28 formal revision.
