KUALA LUMPUR IN THE FEDERAL TERRITORIES, MALAYSIA HIGH COURT 3 (CIVIL DIVISION) CIVIL SUIT NO. WA- 22NCVC-84-07-2018
BETWEEN
SYARIKAT AZEL AZZAN SDN BHD ... PLAINTIFF
(Company No.: 335678-T)
AND
SING HOCK ELECTRIC (KL) SDN BHD ...DEFENDANT
(Company No.: 221145-W)
AFFIDAVIT IN SUPPORT OF APPLICATION
ORDER 18 RULE 19 (1)(a) I, Mr. JAAFAR BIN AMIR (NRIC. NO 610609–14-4557), a Malaysian citizen of full age with an address at No. C1503, Block C, Perdana Exclusive Condominium, No.15, Jalan PJU 8/1, Bandar Damansara Perdana, 47820 Petaling Jaya, Selangor.
1. I am the person duly authorized by the Plaintiff to act on Plaintiff behalf in
the civil action against the Defendant.
A certified true copy of the resolution passed at Plaintiff’s Board of
Directors meeting on 10th July 2017 are now produced, shown to me and collectively marked as Exhibit “SAA-1”.
2. Unless stated herein, this affidavit is made to the best of my knowledge,
information and belief based on facts known to me personally or derived solely from documents, information and records to which I have access and/ in my possession.
3. This Affidavit is made to support the Plaintiffs’ Notice of Application to
strike out the Statement of Defence dated on 2th of February 2018 filed by the Defendants.
4. I upon the advice of the Plaintiff’s Solicitor and pursuant to Order 18 Rule 19 (1)(a) of the Rule of Court 2012, discovers that the Defendants’ Statement of Defence have discloses no reasonable defence.
5. I seek this Honourable Court to refer the following cause papers: -
a. Plaintiffs’ Writ and Statement of Claim dated 26th of January 2018
(hereinafter will be referred as “Plaintiff’s Writ and Statement of Claim”); and
b. Defendants’ Statement of Defence dated 2th of February 2018.
A copy of the Plaintiffs’ Writ and Statement of Claim, both dated 26th January 2018 are now produced, shown to me and collectively marked as Exhibit “SAA- 2”.
A copy of the Defendants’ Statement of Defence, dated 2th February 2018 are now produced, shown to me and collectively marked as Exhibit “SAA-3”.
Parties
6. The Plaintiff, SYARIKAT AZEL AZZAN SDN BHD (Company No.: 335678-T) is a private limited company incorporated under the laws of Malaysia with its registered address at No1, Jalan Sg 1/9, Taman Sri Gombak, 68100 Batu Caves, Selangor.
A copy of the company search on Syarikat Azel Azzan Sdn Bhd conducted with Companies Commission of Malaysia is now produced, shown to me and collectively marked as Exhibit “SAA-4”.
7. The Plaintiff is Malaysia's leading exporter and Southeast Asia’s largest
computer manufacturer. The company principally engaged in the research and development, design, production and sales of computer products.
8. The Defendant SING HOCK ELECTRIC (KL) SDN BHD (Company No.: 221145-W) is a private limited company incorporated under the laws of Malaysia with its registered address at 42B-44B, Jalan Pandan 3/2, Pandan Jaya, Cheras, 55100 Kuala Lumpur, Federal Territory of Kuala Lumpur. A copy of the company search on Sing Hock Electric (KL) Sdn Bhd conducted with Companies Commission of Malaysia is now produced, shown to me and collectively marked as Exhibit “SAA-5”.
9. The Defendant is a small company established on October 2, 2013 by Tan Sing
Hock in Ayer Keroh, Malacca. Its business focuses primarily on manufacturing, distributing and selling information technology (IT) accessories.
Defendant’s Statement of Defence.
10. We deny the grounds submitted in the Defendant’s Statement of Defence:
a. Based on paragraph 3 (b), the Defendant contended that there are no issue of misrepresentation to the consumers as no complaints were received prior to 28th February 2017.
b. The Defendant in paragraph 3 (c), submitted that the Plaintiff has no goodwill and reputation for products that are manufactured by the defendant.
c. Paragraph 5 (a), the Defendant denied to be responsible for the decrease in
profit obtained by the Plaintiff for the year 2017.
d. In paragraph 7, the Defendant contended that the damage claims by the
Plaintiff was too remote.
The Application to Strike Out the Defendants’ Defences
11. I am advised by the Plaintiff’s solicitors and verily believe that the Defendants’ defences in this action ought to be struck off on the following grounds: -
a. The Defendant has cause misrepresentation as the Defendant’s goods were
perceived as Plaintiff’s goods by the consumers.
A copy of Plaintiff’s Customer Complaints Report and the list Products
Complaints by Consumers now produced, shown to me and collectively marked as Exhibit “SAA-6”.
b. The Plaintiff has goodwill and reputation on the usage of the trademark “azel” which were also use by the Defendant.
A copy of Comparison of the trade mark features and Article from the Asia Economic Monitor now produced, shown to me and collectively marked as Exhibit “SAA-7” and “SAA-8”.
c. Plaintiff incurred losses after receiving complaints from its customer regarding faulty goods that belongs to the Defendant in 2017.
i. The Defendant extended it business in Penang, Johor and Selangor
and launch extensive advertisement in 2017
A copy of Mode of Advertisement use by Defendant and Plaintiff’s Profit and
Loss Report now produced, shown to me and collectively marked as Exhibit “SAA-9” and “SAA-10”
12. I am further advised by the Plaintiffs’ Solicitors, for the reasons stated above, the Statement of Defence file by the Defendants discloses no reasonable defence as the case may be, that the Defences is unsustainable in law and should be struck out. 13. The Plaintiffs therefore humbly pray that the Plaintiffs’ Notice of Application filed herein be allowed with costs and costs to be paid by the Defendant to the Plaintiff immediately.
Affirmed by the above named deponent )
JAAFAR BIN AMIR )
(NRIC. NO 610609–14-4557), )
At Messrs Hafiza Zakaria & Co. )……………………………………………….
In the State of Kuala Lumpur ) JAAFAR BIN AMIR
This 8th February 2018 ) (NRIC. NO 610609–14-4557),
Before me,
……………………..………..
Commissioner for Oath
This AFFIDAVIT IN SUPPORT OF APPLICATION is filed by HAFIZA ZAKARIA & Co.,
solicitors for the Plaintiff with an address of service at No. 15-2, Jalan PJU 7/16A, Mutiara Damansara, 47800 Petaling Jaya, Selangor. [Our Ref: NC/DC/MF/065/18]
