Standard Chartered Bank Malaysia Berhad … PlaintiffAnd1. Horizon Extreme Mining Sdn Bhd(Company No: 896026-H)2. Pheng Chin Guan(Nric No: 710827-06-5109)3. Hu Ping Fan(Passport No: G33816045)4. Pheng Yin Huah(Nric No: 480702-06-5091) … Defendants

  

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IN THE HIGH COURT OF MALAYA IN KUALA LUMPUR (COMMERCIAL DIVISION)

 

SUIT NO: 22NCC-129-05/2015

 

BETWEEN

 

STANDARD CHARTERED BANK MALAYSIA BERHAD … PLAINTIFF

 

AND

 

1. HORIZON EXTREME MINING SDN BHD (Company No: 896026-H)

 

2. PHENG CHIN GUAN (NRIC No: 710827-06-5109)

 

3. HU PING FAN (Passport No: G33816045)

 

4. PHENG YIN HUAH

 

(NRIC No: 480702-06-5091) … DEFENDANTS

 

JUDGMENT

 

(Court enclosure no. 20)

 

A. Introduction

 

1. This case raises, among others, the following questions:

 

(a) in a guarantee in favour of a bank which has an express provision for communication (Communication Clause) to a specified address of a guarantor (Specified Address), can a guarantor contend that

 

i

 

the bank cannot lawfully serve a sealed Writ and Statement of Claim (Writ) on the Specified Address when the guarantor alleges that –

 

(i) the guarantor no longer resides at the Specified Address; and

 

(ii) the bank’s officer has the guarantor’s mobile phone number and can have easily obtained the guarantor’s current address; and

 

(b) is the bank estopped from relying on the Communication Clause in view of the fact that the bank’s officer has the guarantor’s mobile phone number and can have easily obtained the guarantor’s current address.

 

B. Facts

 

2. The plaintiff bank (Plaintiff) granted loan facilities of RM23,500,000.00 (Facilities) to the first defendant company (1st Defendant). The repayment of the Facilities had been secured by a guarantee executed on 14.3.2011 (Guarantee) by the following persons:

 

(a) the second defendant (2nd Defendant);

 

(b) the third defendant (3rd Defendant); and

 

(c) the fourth defendant (4th Defendant).

 

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The 2nd, 3rd and 4th Defendants will be collectively referred to in this judgment as the “Guarantors”.

 

3. The Guarantee provided, among others, as follows:

 

(a) in consideration of the Plaintiff’s grant of the Facilities to the 1st

 

Defendant, the Guarantors irrevocably and unconditionally –

 

(i) as “principal obligors” guaranteed to the Plaintiff the due and punctual performance and discharge by the 1st Defendant of the “Guaranteed Obligations” [defined in clause 1.1 of the Guarantee as the 1st Defendant’s obligations to pay all money and discharge all obligations due, owing and incurred in any manner to the Plaintiff] as the Guaranteed Obligations fall due [Clause 2(a)(i)];

 

(ii) undertook with the Plaintiff that whenever the 1st Defendant did not pay any amount forming part of the Guaranteed Obligations when due, the Guarantors “must’ immediately on demand by the Plaintiff, pay the amount as if the Guarantors were the principal obligors in respect of that amount [Clause 2(a)(ii)]; and

 

(iii) agreed to indemnify the Plaintiff immediately on demand against any loss or liability suffered by the Plaintiff if any of the Guaranteed Obligations became unenforceable, invalid or illegal. This indemnity constituted a separate and independent

 

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obligation from any other obligation in the Guarantee and gave rise to a separate and independent cause of action and shall remain in full force despite any waiver, indulgence, judgment or order given in respect of any sum due under the Guarantee [Clause 2(a)(iii)];

 

(b) each of the Guarantors would be jointly and severally liable under the Guarantee [Clause 2(b)(i)];

 

(c) the Guarantors irrevocably agreed and undertook at any time or in any manner whatsoever, not to –

 

(i) revoke or terminate the Guarantee; and

 

(ii) revoke, terminate or limit any of the Guarantor’s liabilities or obligations under the Guarantee

 

– unless and until all the Guaranteed Obligations had been fully paid to and received by the Plaintiff and the Guarantors irrevocably waived any and all rights or powers the Guarantors might have under any applicable law or statute (Clause 3.1);

 

(d) the Guarantors’ obligations and the Plaintiff’s rights under the

 

Guarantee would not be affected by an act or omission which would reduce, release or prejudice the Guarantors’ obligations under the Guarantee (Clause 3.3). Clause 3.3(g) provided that the Guarantors’ obligations would not be affected by any

 

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unenforceability, illegality or invalidity of any obligation of any person under any agreement, document or security;

 

(e) the obligations expressed to be assumed by the Guarantors in the Guarantee are legal, valid, binding and enforceable obligations (Clause 4.1);

 

(f) the Guarantors acknowledged that in entering the Guarantee, the Guarantors agreed with the Plaintiff that neither the Plaintiff nor the Plaintiff’s officials, employees or agents should have any liability for anything which the Plaintiff, its officials, employees or agents might have done or failed to do in good faith [Clause 6(d)];

 

(g) no term of the Guarantee could be waived or amended except in writing by the parties (Clause 11.1);

 

(h) any communication made in connection with the Guarantee, including any demand made under the Guarantee, “must’ be in English and in writing (Clause 14.1);

 

(i) the address and fax number of each party to the Guarantee for any notice, communication or document to be made or delivered under or in connection with the Guarantee would be as stated in Schedule 1 to the Guarantee (Schedule 1) or as otherwise notified to the other parties by not less than 5 Banking Days’ notice (Clause 14.2). Clause 1.1 of the Guarantee defines a “Banking Day” to mean a day on which the Plaintiff is open for general business for the relevant

 

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state in Malaysia while Schedule 1 specified, among others, the address of both the 2nd and 4th Defendants to be no. A-5188, Lorong Kubang Buaya 80, 25250 Kuantan, Pahang Darul Makmur (No. A-5188 Address);

 

(j) any communication, notice or document made or delivered to the Guarantors in connection with the Guarantee would only be effective if sent by post, 3 Banking Days after posting [Clause 14.3(a)(iii)]. It is also stated in Clause 14.3(a) that if any communication, notice or document is received by the Guarantors on a non-Banking Day or after business hours in the place of receipt, it would be “deemed” to be given on the next Banking Day;

 

(k) any communication or document given to the Plaintiff would be effective only when actually received by the Plaintiff except where the Plaintiff required verification, the communication or document would be deemed received only upon receipt of such document or evidence [Clause 14.3(b)];

 

(l) the Guarantors agreed that the Plaintiff might record all oral and written communication with the Plaintiff in such manner and times as deemed fit by the Plaintiff [Clause 14.3(c)];

 

(m) if any provision in the Guarantee is or becomes illegal, invalid or unenforceable under any law of any jurisdiction, neither the remaining provisions in the Guarantee nor the legality, validity or

 

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enforceability of such provisions under the law will be in any way affected or impaired (Clause 15); and

 

(n) the Guarantors confirmed that they had been advised to obtain independent legal advice as to the nature and effect of the Guarantee but had declined to do so.

 

4. The Plaintiff’s former solicitors sent a letter dated 9.3.2015 to the 2nd, 3rd and 4th Defendants (Plaintiff’s Demand dated 9.3.2015). The Plaintiff’s Demand dated 9.3.2015 had been sent to the No. A-5188 Address for the 2nd and 4th Defendants. The Plaintiff’s Demand dated 9.3.2015 demanded the 2nd, 3rd and 4th Defendants to pay to the Plaintiff pursuant to the Guarantee, a sum of RM20,597,413.70 (Demanded Sum) as at 3.3.2015 together with interest accruing on the Demanded Sum at the rate of 8.35% per annum with monthly rests with effect from 4.3.2015 until the date of full settlement.

 

5. The Plaintiff filed the Writ on 11.5.2015 and the sealed Writ was served on the 2nd and 4th Defendants on 19.5.2015 by “A. R. Registered Post at No. A-5188 Address.

 

6. The 2nd to 4th Defendants did not enter appearance in this suit and a judgment in default of appearance had been entered against the 2nd to 4th Defendants on 9.6.2015 (Default Judgment).

 

7. The 1st Defendant had been wound up by a third party on 9.4.2015.

 

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8. On 9.6.2015, the 2nd and 4th Defendants filed an application in court enclosure no. 7 to set aside the Default Judgment (Court Enc. No. 7). Court Enc. No. 7 was dismissed with costs by the learned Senior Assistant Registrar (SAR) on 11.9.2015 (SAR’s Decision).

 

9. The 2nd and 4th Defendants appealed to the High Court judge against the SAR’s Decision in court enclosure no. 20 (This Appeal).

 

C. Submission by 2nd and 4th Defendants

 

10. Learned counsel for the 2nd and 4th Defendants contended as follows in support of This Appeal:

 

(a) on 9.6.2015, the date of the Default Judgment, the 2nd Defendant received a telephone call from the Plaintiff’s officer who informed the 2nd Defendant that the Default Judgment had been obtained by the Plaintiff. The 2nd and 4th Defendants then instructed their solicitors to do a file search of this case and discovered that the Writ had been sent to the No. A-5188 Address. The affidavit in support of Court Enc. No. 7 had been affirmed by the 2nd Defendant on 26.6.2015 (2nd Defendant’s Affidavit) and stated that the 2nd Defendant’s address was at No. 7, Lorong Kubang Buaya 78, Jalan Kubang Buaya, 25050 Kuantan (No. 7 Address). The 2nd Defendant wrote a letter dated 12.6.2015 to the Plaintiff (2nd Defendant’s Letter dated 12.6.2015) to complain that the Plaintiff’s officer and solicitors could have easily contacted the 2nd Defendant through the 2nd Defendant’s

 

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mobile phone to arrange for service of the Writ. The 2nd Defendant’s Letter dated 12.6.2015 further alleged that the entering of the Default Judgment “was concocted to pressurize” the 2nd and 4th Defendants without giving them a chance to verify the validity and accuracy of the Plaintiff’s claim;

 

(b) the 2nd and 4th Defendants alleged that they had not received the Writ as they were not staying at the No. A-5188 Address. The 2nd and 4th Defendants further averred that at all material times, the Plaintiff had the 2nd Defendant’s mobile phone number and had failed to take reasonable steps to ascertain the latest address of the 2nd and 4th Defendants. As such, the Default Judgment had been obtained irregularly and on this ground alone, the Default Judgment should be set aside ex debito justitiae. Reliance was placed on the following authorities –

 

(i) Order 13 rule 8 of the Rules of Court 2012 (RC);

 

(ii) the Federal Court’s judgment in Tuan Haji Ahmed Abdul Rahman v Arab-Malaysian Finance Bhd [1996] 1 MLJ 30;

 

(iii) the Court of Appeal case of Witech Sdn Bhd & Ors v BHR Group Ltd [2010] 9 CLJ 288;

 

(iv) the High Court’s decision in ML Capital Sdn Bhd v Gadongmas Zeron Sdn Bhd & Ors [2010] MLJU 2115; and

 

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(v) the High Court case of Re Peh Kong Wan, Ex Parte United Malayan Banking Corp Bhd [1992] 2 MLJ 292;

 

(c) as the Default Judgment has been obtained irregularly, the court has the inherent jurisdiction to prevent an abuse of court proceedings and should therefore set aside the Default Judgment in the exercise of the court’s inherent jurisdiction;

 

(d) if the Default Judgment is set aside, there is not prejudice to the Plaintiff as the Plaintiff is still able to prove its claim during the trial of this case;

 

(e) the Plaintiff is estopped from relying on A-5188 Address as the Plaintiff’s officer has been liaising with the 2nd Defendant. Learned counsel for the 2nd and 4th Defendants cited the following cases –

 

(i) the Federal Court case of Boustead Trading (1985) Sdn Bhd v Arab-Malaysian Merchant Bank Bhd [1995] 3 MLJ 331; and

 

(ii) the Court of Appeal’s judgment in Nirwana Construction Sdn Bhd v Pengarah Jabatan Kerja Raya Negeri Sembilan Darul Khusus & Anor [2008] 4 MLJ 157;

 

(f) as the Plaintiff’s officer has the 2nd Defendant’s mobile phone number and has been liaising with the 2nd Defendant, there is a variation of the Guarantee in respect of the address for service of the 2nd and 4th Defendants; and

 

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(g) assuming the Default Judgment has been obtained regularly, the 2nd and 4th Defendants have the following meritorious defences –

 

(i) no proper demand has been made by the Plaintiff on the 2nd and 4th Defendants because the 2nd and 4th Defendants have ceased to be the 1st Defendant’s directors. The 2nd and 4th Defendants rely on the following cases –

 

(1) the Court of Appeal case of Soon Peng Yam & Anor v Bank of Tokyo-Mitsubishi (M) Bhd [2004] 2 MLJ 31;

 

(2) the Supreme Court’s decision in Mok Hin Wah & Ors v United Malayan Banking Corp Bhd [1987] 2 MLJ 610; and

 

(3) the Supreme Court’s judgment in Orang Kaya Menteri Paduka Wan Ahmad Isa Shukri bin Wan Rashid v Kwong Yik Bank Bhd [1989] 3 MLJ 155;

 

(ii) the Plaintiff’s claim in this case is tainted with illegality and fraud in the following manner –

 

(1) the purpose of the Facilities was to finance the purchase of machinery and mining equipment to enhance the 1st Defendant’s business;

 

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(2) the 3rd Defendant is a director of the 1st Defendant and owns Kaifan Material Sdn. Bhd. (KMSB). Based on the 3rd Defendant’s representations, most of the 1st Defendant’s machinery had been purchased from KMSB;

 

(3) the Guarantee has a “condition precedent that a charge “must be created in the Plaintiff’s favour over all machinery and equipment purchased by the 1st Defendant by using the Facilities (Alleged Condition). The Alleged Condition is in the interest of the 2nd and 4th Defendants by minimizing the risk exposure of the 2nd and 4th Defendants as guarantors. Furthermore, the 2nd and 4th Defendants were not personally involved in the assessment and purchase of machinery and equipment by the 1st Defendant;

 

(4) the Alleged Condition had been duly accepted by the Plaintiff and incorporated into the Facilities agreement. As such, the Plaintiff had an obligation under the Facilities agreement to inspect physically the machinery and equipment purchased by the 1st Defendant so that a charge over such machinery and equipment could be created in the Plaintiff’s favour; and

 

(5) the 3rd Defendant had committed fraudulent misrepresentation because “some” of the machinery and equipment which had been listed as purchased by the 1st

 

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Defendant, were not in the 1st Defendant’s possession. The 2nd and 4th Defendants reserve their right to commence the necessary action against the 3rd Defendant. The Plaintiff is therefore barred from enforcing the Guarantee in this case. The following authorities have been relied on by the 2nd and 4th Defendants –

 

(5A) s 24(b) of the Contracts Act 1950 (CA);

 

(5B) the High Court case of Siow Kwang Joon & Anor v Asia Commercial Finance (M) Bhd

 

[1996] 3 MLJ 641;

 

(5C) the decision of Brunei’s Intermediate Court in Lim Hon Kong & Anor v Cpt (R) Zailan bin Pehin Dato Mohd Don [2010] MLJU 867;

 

(5D) the High Court’s decision in Tan Cheng Huat v Hii Yii Peng & Ors [2009] 1 LNS 1574;

 

(5E) the Supreme Court case of Hasil Bumi

 

Perumahan Sdn Bhd & Ors v United Malayan Banking Corp Bhd [1994] 1 CLJ 328;

 

(5F) the Supreme Court’s judgment in Fira

 

Development Sdn Bhd v Goidwin Sdn Bhd

 

[1989] 1 MLJ 40;

 

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(5G) the Supreme Court’s decision in Lim Kar Bee v Duofortis Properties (M) Sdn Bhd [1992] 2 MLJ 281;

 

(5H) the High Court case of United Overseas Bank (M) Bhd v Mok Hue Huan & Anor [2010] 7 MLJ 293;and

 

(5I) the High Court’s judgment in Abdul Hamid bin Mahmood & Anor v Oriental Bank Bhd [2002] 2 MLJU 704;

 

(iii) the Plaintiff had failed to comply with the Alleged Condition by not carrying out a proper due diligence to confirm the existence of the machinery and equipment purportedly purchased by the 1st Defendant before the Plaintiff released the Facilities. Oral evidence is admissible under s 92(b) and (c) of the Evidence Act 1950 (EA) to prove the Alleged Condition and the Plaintiff’s breach of the Alleged Condition. The 2nd and 4th Defendants had relied on the High Court’s decision in Usahasama SPNB-LTAT Sdn Bhd v Borneo Synergy (M) Sdn Bhd [2009] 2 MLJ 308;

 

(iv) the Plaintiff could not rely on Clauses 3.3(d) and 6(d) in this case because –

 

(1) there was no proper demand by the Plaintiff on the 2nd and

 

4th Defendants; and

 

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(2) the Plaintiff had breached the Alleged Condition by failing to carry out a proper due diligence to confirm the existence of the machinery and equipment purportedly purchased by the 1st Defendant before the Plaintiff released the Facilities; and

 

(v) the 2nd and 4th Defendants are not affected by the 1st Defendant’s winding up. The 2nd and 4th Defendants rely on the High Court’s decision in Malayan Banking Bhd v Yeo Sun Tong [1999] 6 MLJ 377.

 

D. Principles applicable in applications to set aside judgments in default of appearance

 

11. Order 13 rule 8 RC provides as follows:

 

“Setting aside judgment

 

Order 13 rule 8. The Court may, on such terms as it thinks just,

 

set aside or vary any judgment entered in pursuance of this Order ”

 

(emphasis added).

 

12. In deciding whether a judgment in default of appearance should be set aside under Order 13 rule 8 RC, the following questions arise:

 

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(a) whether the judgment in default of appearance has been obtained in breach of RC;

 

(b) if the judgment in default of appearance has been obtained in breach of RC, namely the default judgment is an irregular one, the default judgment should be set aside; and

 

(c) if the judgment in default of appearance has been obtained in compliance with the RC, namely the default judgment is a regular one, whether the defendant has filed an affidavit which has disclosed a meritorious defence in the sense such a defence should be tried in court. If “yes”, the default judgment should be set aside. If the defendant’s affidavit does not show any merit which is triable, the regular default judgment is maintained.

 

13. The above trite principles in determining applications to set aside judgments in default of appearance have been decided by our apex courts in the following cases (in chronological order):

 

(a) the Supreme Court’s judgment delivered by Lee Hun Hoe CJ (Borneo) in Fira Development Sdn Bhd, at p. 41;

 

(b) the judgment of Edgar Joseph Jr FCJ in the Federal Court case of Tuan Haji Ahmed Abdul Rahman, at p. 36;

 

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(c) the judgment of Mohd. Azmi FCJ in the Federal Court case of Lai Yoke Ngan & Anor v Chin Teck Kwee & Anor [1997] 2 MLJ 565, at 573-574; and

 

(d) the Federal Court’s judgment given by Zulkefli Makinuddin CJ (Malaya) in Maxland Sdn Bhd v Timatch Sdn Bhd [2014] 6 MLJ 1, at 12.

 

14. The above principles for deciding applications to set aside judgments in default of appearance, apply to applications to set aside judgments in default of pleadings under Order 19 rule 9 RC – please see the judgment of Jemuri Serjan CJ (Borneo) in the Supreme Court case of Hasil Bumi Perumahan Sdn Bhd, at p. 330.

 

E. Is Default Judgment regular?

 

15. Order 10 rule 1 RC provides as follows:

 

“General provisions

 

Order 10 rule 1(1) Subject to the provisions of any written

 

law and these Rules, a writ shall be

 

served personally on each defendant or

 

sent to each defendant by prepaid A.R. registered post addressed to his last known address and in so far as is practicable, the first attempt at service

 

17

 

must be made not later than one month from the date of issue of the writ.

 

(2) Where a defendant’s solicitor endorses on

 

the writ a statement that he accepts service of the writ on behalf of that defendant, the writ shall be deemed to have been duly served on that defendant and to have been so served on the date on which the endorsement was made.

 

(3) Where a writ is not duly served on a

 

defendant but he enters an appearance in the action begun by the writ, the writ shall be deemed to have been duly served on him and to have been so served on the date on which he entered the appearance.

 

(4) Where a writ is duly served on a

 

defendant otherwise than in accordance with paragraph (2) or (3), then subject to Order 11, rule 5, unless after service the person serving it endorses on it the following particulars, that is to say, the day of the week and date on which it was served, where it was served, the person on whom it was served, and, where he is not the defendant, the capacity in which he was served, the plaintiff in the action begun by the writ is not entitled to enter final or interlocutory judgment against that

 

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defendant in default of appearance or in default of defence, unless the Court otherwise orders ”

 

(emphasis added).

 

16. It is not disputed that the Writ has been sent by way of AR Registered Post. The issue that arises is whether the No. A-5188 Address is the “last known address” of the 2nd and 4th Defendants within the meaning of Order 10 rule 1(1) RC.

 

17. I am of the considered view that the No. A-5188 Address is the “last known address” of the 2nd and 4th Defendants for the purpose of Order 10 rule 1(1) RC. My decision is premised on the following reasons:

 

(1) the Plaintiff was entitled to rely on the following provisions of the

 

Guarantee –

 

(a) the Writ fell within the meaning of “document’ in Clauses 14.2, 14.3(a)(iii) and (b);

 

(b) the Plaintiff, 2nd and 4th Defendants had expressly agreed in Clause 14.2 and Schedule 1 that the No. A-5188 Address would be used for the 2nd and 4th Defendants “for any notice, communication or document to be made or delivered under or in connection with” the Guarantee unless the 2nd and 4th

 

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Defendants had notified the Plaintiff otherwise by notice of not less than 5 Banking Days.

 

Clause 14.1 required communication to be made in English and in writing. According to Clause 14.3(b), any communication by the 2nd and 4th Defendants to the Plaintiff, is only effective when such a communication is actually received by the Plaintiff. It is clear in this case that the 2nd and 4th Defendants have not notified the Plaintiff in English and in writing of the change of the address of the 2nd and 4th Defendants from No. A-5188 Address to No. 7 Address. I rely on Vincent Ng J’s (as he then was) judgment in the High Court case of Affin Bank Bhd v Major Galaxy Sdn Bhd & Ors [2006] 5 CLJ 73, at 80-81 (Major Galaxy Sdn Bhd), as follows –

 

“Consequently, I would hold that as the place where service was effected was the address provided by the first defendant as its official or registered address, it cannot be argued that the service was improperly effected. The rationale for this is simple; since this was the address furnished by the first defendant, it is incumbent upon it to notify the plaintiff of any change of address, and until so notified this address should remain as its last known address. Clearly, the service was correctly effected and the judgment in default is regular.”

 

(emphasis added).

 

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It is to be noted that in Major Galaxy Sdn Bhd, there is no provision in the guarantee in that case which is similar to Clause 14.2 and Schedule 1 (regarding the Specified Address of the 2nd and 4th Defendants at No. A-5188 Address) and yet the High Court held in that case that an address furnished by a guarantor could be used by the plaintiff bank to serve the Writ in question; and

 

(c) once the Writ had been sent to the No. A-5188 Address by AR Registered Post, Clause 14.3(b)(iii) would deem the Writ to be served on the 2nd and 4th Defendants 3 Banking Days after posting. I refer to the following cases –

 

(i) in Amanah Merchant Bank Bhd v Lim Tow Choon

 

[1994] 1 MLJ 413, at 415-416, 418 and 420, Mohamed Dzaiddin SCJ (as he then was) delivered the following judgment of the Supreme Court –

 

“ This appeal concerns an interpretation of a clause in a letter of guarantee (‘the said guarantee’) dealing with the service of a notice of demand. The material clause in the guarantee states as follows:

 

17 Any notice may be served on the undersigned or his/their executors, administrators or legal representatives either personally or by sending the same through the post in an envelope addressed to the last known place of address of the person to be served and a notice so sent shall be deemed to be

 

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served on the day following that on which it is posted.

 

The central issue in the present appeal is whether, on the proper construction of cl 17 of the said guarantee, it could be held that it is sufficient to prove that the notice of demand was duly served on the respondent by sending the same through the post in an envelope addressed to the last known place of address of the respondent, and that it is irrelevant whether it was sent by registered post or by AR registered post or, as was held by the learned judge, that the deeming provision only applies to a notice sent by ordinary post and that since the appellant had taken on the added responsibility of sending the notice by AR registered post, it was only upon the return of the AR card with an acknowledgement of receipt that the said notice had been effectively served on the respondent. With respect, we do not agree with the finding of the learned judge. In construing the words of the guarantee, in our view, the learned judge should have adopted a liberal approach by giving a reasonable construction to them, having regard to the surrounding circumstances (Kong Ming Bank Bhd v Leong Ho Yuen; Bank Bumiputra Malaysia Bhd v Esah bte Abdul Ghani, following the judgment of Fry J in Lloyd’s vHarper). …

 

Although the words ‘shall be deemed’ in the above case was considered in the context of the statutory provisions, in our view, we can draw an analogy from this case that, in the present appeal, it is sufficient to prove service of the notice of demand by sending it through the post in an envelope addressed to the last known place of address of the defendant, and once this is established the deeming provision would apply as in the case cited above.

 

For reasons stated above, in our judgment, on the true construction of cl 17 of the guarantee, the notice of demand sent by AR registered post and acknowledged receipt for service by the postal

 

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authority on 9 March 1988 was effectively served on the respondent on the following day, despite the nonreturn of the retour card by virtue of the deeming provision therein. In the result, the appellant had

 

established a cause of action against the respondent.

 

))

 

(emphasis added);

 

(ii) Abu Samah JCA (as he then was) held as follows in the Court of Appeal case of Affin Bank Bhd (formerly known as BSN Commercial Bank (M) Bhd) v HIB-C Industries Sdn Bhd & Ors [2013] 3 MLJ 41, at 44, 44-45 and 45-46 (HIB-C Industries Sdn Bhd) –

 

“[1] The only issue in this appeal is on the proper construction of cl 12 of the letter of guarantee dated 6 April 1996 (exh P3) executed by the second and third respondents in favour of the appellant.

 

[8] Clause 12 of the letter of guarantee provides:

 

12. Any demand for payment or any other demand or notice under this Guarantee may be made by any of your manager, sub-manager, secretary or other officers for the time being appointed by you or by any person or firm for the time being acting as your solicitor or solicitors by letter sent by post

 

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addressed to me/us or each of us at my/our address specified herein or at my/our last known place of business or abode and a demand or notice so sent shall be deemed to be served on the day following that on which it is posted. In proving such service it shall be sufficient to prove that the notice or demand was properly addressed and put in the post notwithstanding that the said notice or demand may subsequently be returned undelivered by the postal authorities.

 

[10] In our judgment, cl 12 of the letter of guarantee is crystal clear and devoid of any ambiguity. The onus on the appellant is merely to show that the notice of demand to the second and third respondents was sent by post addressed to them at their addresses as stated in the letter of guarantee or at the their last known place of business or abode. The demand or notice so sent shall be deemed to be served on the day following that on which it is posted. In proving such service it shall be sufficient to prove that the notice or demand was properly addressed and put in the post notwithstanding that the said notice or demand may subsequently be returned undelivered by postal authorities. (Emphasis added.)

 

[11] It is an undisputed fact that the notice of demand (exh P13) was sent to the second and third respondents according to their addresses as specified in the letter of guarantee. The AR Cards were exhibited as P13A. The reference number of the notice of demand is written on the AR Cards. It is immaterial whether such notice or demand

 

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was actually delivered or not. The fact that the AR Cards were signed by an unknown person and bore the rubber stamp of Customax Sdn Bhd is irrelevant to the appellant’s claim based on the letter of guarantee in view of cl 12 of the letter of guarantee. The admission by PW4 that the AR Cards showed that the notice of demand was received by Customax Sdn Bhd and not by the second and third respondents has no bearing on the proper construction of cl 12 of the letter of guarantee and cannot form the basis of dismissing the appellant’s claim against the second and third respondents.

 

[12] The true meaning of a common deeming clause in a letter of guarantee had been authoritatively

 

explained in Amanah Merchant Bank Bhd’s case.

 

))

 

(emphasis added);

 

(iii) in the High Court case of Teck Guan Trading Sdn Bhd v Hydrotek Engineering (S) Sdn Bhd & Ors [1996] 4 MLJ 331, at 340-342, Ian Chin J decided as follows –

 

“The provision in the guarantee deeming service is cl 10 which says:

 

Any notice or demand made by you hereunder may be served on me/us personally or sent to me/us by post to my/our address stated overleaf or my/our last known address and if sent by post shall be conclusively deemed to have been received by me/us within 48 hours after the time of posting despite any evidence to the contrary.

 

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Mr Lim argued that ‘the learned registrar erred in law and in fact by not accepting the second and third defendants’ defence that they did not receive the notice of demand which was a condition precedent to be satisfied by the plaintiffs before they could sue the said defendants’. Mr Lim then referred to Ng Hee Thoong & Anor v Public Bank Bhd [1995] 1 MLJ 281, which considered the following provision at p 284:

 

As to each of us any notice may be served on each of us or on the legal personal representative of each of us either personally or by sending the same through the post in an envelope addressed to the above-mentioned address or the last known place of address of the person to be served, and a notice so sent shall be deemed to be served on the say following that on which it was posted.

 

In that case, just as in this case, no explanation was given why the demand was posted to another address other than the specific address mentioned in the guarantee and the guarantor denied receiving the said demand. The Court of Appeal there held that since there was no explanation why the demand was sent to another address other than the specific address and since the denial of receipt of the demand was not controverted by affidavit evidence, the issue of demand becomes triable. This is what the Court of Appeal said, at p 286:

 

The respondent bank may well have had a good reason for selecting the addresses appearing on the letters of demand. If it did, then, it must have come out and said so and proffered an explanation. In the absence of any explanation, the affirmative statement made by the appellants upon this critical issue remained unchallenged. It is axiomatic that had the respondent either used the addresses stated in the guarantees or had given a credible explanation as to why those addresses were

 

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not used, then it may have been entitled to rely on the deeming effect of cl 8: Amanah Merchant Bank Bhd v Lim Tow Choon [1994] 1 MLJ 413.

 

I am unable to agree that Ng Hee Thoong & Anor v Public Bank Bhd can apply to the present case because the clause of that case is different from that of our present case. It is a matter of interpretation of a particular clause when attempting to ascertain its meaning. The wordings of the clause of the present case make it clear that the receipt of the demand is deemed to have taken place notwithstanding that the second and third defendants may not have received them and this is abundantly clear from the words ‘despite evidence to the contrary’ in the clause. The words of the clause allow the plaintiff to choose between sending to the specific address mentioned in the guarantee or to the ‘last known address’. I am unable to agree and I do not see how the plain words in the clause can be stretched to require the plaintiff to explain why they have chosen not to send to the specific address rather than to the last known address. The words do not so require. What is required of the plaintiff is that they must have sent by post the demand to the last known address of the second and third defendants. The postal receipt had been exhibited. That the address was the last known address was asserted to in the affidavit filed on behalf of the plaintiff and this assertion, Mr Norbert Yapp, learned counsel for the plaintiff, correctly submitted, was never controverted. Not only that, the second defendant was at the relevant time, the chairman, and the third defendant, the general manager, of the first defendant company whose postal address was the address to which the demand on the second and third defendants was sent. Therefore, it is not only that the assertion was not controverted but the evidence also bore out that the address to which the demand was posted was the last known address of the said two defendants. As was in Amanah Merchant Bank Bhd v Lim Tow Choon [1994] 1 MLJ 413 (SC), I am also of the view that the demand had been properly served on the two defendants .”

 

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(emphasis added); and

 

(iv) in Asia Commercial Finance (M) Bhd v Regional Brilliance Sdn Bhd & Ors [2005] 6 MLJ 580, at 584, 585 and 586, Low Hop Bing J (as he then was) gave the following judgment in the High Court –

 

16. … The guarantee expressly stated in s 2 of the First Schedule thereto that D5’s address for service is the Melaka Raya address.

 

17. In addition, D5 has expressly agreed vide clause 22.1 of the guarantee, where relevant, as follows:

 

22.1 Any demand or notice for payment or any other demand or notice under this Guarantee … may be made by you and by any person … for the time being acting on your behalf as your solicitor(s) by letter addressed to me … and … sent by post … to my address set forth in Section 2 of the First Schedule … shall be deemed, notwithstanding anything herein contained to the contrary, to be duly served when it ought, in due course of post or transmission, to have been delivered . . ..

 

18. Clause 22.1 is self-explanatory. The notice of demand sent by the plaintiff to D5’s Melaka Raya address is consistent with the address expressly stated in s 2 of the First Schedule to the guarantee, in which case the notice of demand shall be deemed, notwithstanding anything to the contrary, to be duly served when it ought, in due

 

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course of post or transmission, to have been delivered to D5.

 

19. An almost identical clause came up for consideration in Teck Guan Trading, where clause 10 of the guarantee executed by the second and third defendants there reads as follows:

 

21. I agree with the view of the learned judge. In the instant case, a fortiori, since the notice of demand has been sent by way of AR registered post to D5 at the address given by D5 in the guarantee, I am unable to sustain the above submission presented for D5.

 

26. In this regard, O 10 r 1(1) of the RHC 1980 and s 12 of the Interpretation Acts of 1948 and 1967 are applicable.

 

28. In my view, the plaintiff’s service of the writ by sending it to the Jalan Ong Kim Wee address as the last known business address of D5 has sufficiently fulfilled the prescribed mode of service under O 10 r 1(1) read together with s 12.”

 

(emphasis added); and

 

(2) there is no obligation on the Plaintiff to conduct a search at the National Registration Department for the latest residential address of the 2nd and 4th Defendants. This is clear from Syed Ahmad Helmy JCA’s judgment in the Court of Appeal case of Sivamurthy s/o Muniandy & Ors v Lembaga Kumpulan Wang Simpanan Pekerja [2013] 5 MLJ 533, at 538.

 

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18. I cannot accept the contention of the 2nd and 4th Defendants that since an officer of the Plaintiff knows the 2nd Defendant’s mobile phone number and has been liaising with the 2nd Defendant, the “last known address” of the 2nd and 4th Defendants is the No. 7 Address. My reasons are as follows:

 

(1) Clause 14.1, 14.2, 14.3(b) and Schedule 1 are “legal, valid, binding and enforceable obligations” according to Clause 4.1. If the Plaintiff has sent the Writ to the No. 7 Address, the service of the Writ will not only have breached Order 10 rule 1(1) RC but the 2nd and 4th Defendants can also legitimately complain that the Plaintiff has breached Clause 14.2 and Schedule 1!;

 

(2) Clause 3.3 had expressly provided that the Plaintiff’s rights under the Guarantee would not be affected by any act or omission which would reduce, release or prejudice the obligations of the 2nd and 4th Defendants. Furthermore, according to Clause 6(d), neither the Plaintiff nor its officers, employees or agents shall be liable for anything which the Plaintiff and its officers, employees and agents might have done or failed to do in good faith. Clause 3.1 further stated that until all the Guaranteed Obligations had been paid to and received by the Plaintiff, the 2nd and 4th Defendants irrevocably waived all their rights under “any applicable laW’. The Plaintiff is entitled to rely on Clauses 3.1, 3.3 and 6(d) wherein the Plaintiff is not liable for any omission on the part of the Plaintiff, its officers, employees and agents to ascertain the latest residential address of the 2nd and 4th Defendants. It is to be borne in mind that the 2nd and

 

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4th Defendants had confirmed in the Guarantee that they had been advised to obtain independent legal advice as to the nature and effect of the Guarantee but they had declined to do so.

 

It is to be borne in mind that Malaysia does not have any legislation equivalent to the United Kingdom’s Unfair Contracts Terms Act 1977 [UCTA (UK)]. This is clear from the following 2 Court of Appeal cases –

 

(a) Gopal Sri Ram JCA’s (as he then was) judgment in Saad Marwi v Chan Hwan Hua & Anor [2001] 3 CLJ 98, at 115; and

 

(b) the supporting judgment of Abdul Malik Ishak JCA in Wee Lian Construction Sdn Bhd v Ingersoll-Jati Malaysia Sdn Bhd

 

[2010] 4 CLJ 203, at 220-221.

 

In the absence of any Malaysian statute similar to UCTA (UK), the Plaintiff can rely on the full effect of Clauses 3.1, 3.3 and 6(d) to maintain the Default Judgment;

 

(3) to accept the above contention of the 2nd and 4th Defendants, is tantamount to allowing the 2nd and 4th Defendants to breach the following provisions in the Guarantee –

 

(a) Clause 14.2 required the 2nd and 4th Defendants to give notice of change of Specified Address to the Plaintiff of not less than 5 Banking Days;

 

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(b) according to Clause 14.1, any communication regarding the Guarantee “must’ be in English and in writing. Clause 14.1 had expressly excluded any oral communication over mobile telephone as alleged by the 2nd Defendant;

 

(c) Clause 14.3(b) stipulated that any communication given to the Plaintiff was only effective when such communication was “actually received” by the Plaintiff;

 

(d) Clauses 3.1, 3.3 and 6(d) provided “protection” for the Plaintiff; and

 

(e) Clause 11.1 provided that the terms of the Guarantee, including Clauses 3.1, 3.3, 6(d), 14.1, 14.2, 14.3(a)(iii), 14.3(b) and Schedule 1, could not be amended except in writing by all the parties. To accede to the above argument of the 2nd and 4th Defendants, is to allow a unilateral variation of Clauses 3.1, 3.3, 6(d), 14.1, 14.2, 14.3(a)(iii), 14.3(b) and Schedule 1 by the 2nd and 4th Defendants which amounts to a breach of Clause 11.1.

 

In Pentadbir Tanah Daerah Petaling v Swee Lin Sdn Bhd [1999] 3 MLJ 489, at 492 (Swee Lin Sdn Bhd), Gopal Sri Ram JCA delivered the following judgment in the Court of Appeal:

 

“Quite apart from the construction of para 1(3)(b) of the First Schedule, there is a principle of great antiquity that a litigant ought not to benefit from its own wrong. Although of universal application, it has been restated when applied to a particular

 

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context. For example, the principle when applied in the context of the law of contract may be formulated as follows: a party ought not to be permitted to take advantage if his own breach. See Alghussein Establishment v Eton College [1988] 1 WLR 587, New Zealand Shipping Co Ltd v Societe Des Ateliers Et Chantiers De France [1919] AC 1.

 

But as I have said, the principle is of universal application .” (emphasis added).

 

Based on Swee Lin Sdn Bhd, an acceptance of the above contention by the 2nd and 4th Defendants, will not only allow the 2nd and 4th Defendants to breach Clauses 3.1, 3.3, 6(d), 11.1, 14.1, 14.2, 14.3(a)(iii), 14.3(b) and Schedule 1 but will also allow the 2nd and 4th Defendants to take unlawful advantage of such a breach;

 

(4) it is trite law that the Plaintiff is a legal person under s 16(5) of the Companies Act 1965 which is distinct from the Plaintiff’s directors, employees, agents, parent company and subsidiary companies. As such, even if this court assumes that a director, employee and agent of the Plaintiff has actual knowledge of the change in the residential address of the 2nd and 4th Defendants from the No. A-5188 Address to the No. 7 Address (Purported Knowledge), the Purported Knowledge cannot be imputed or attributed in any manner to the Plaintiff. If this court holds that the Plaintiff has the Purported Knowledge, a fundamental principle of company law, namely the separate legal personality of a company, will be obliterated; and

 

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(5) in this case, the 2 affidavits of the 2nd Defendant did not apply for the exercise of this court’s discretion to lift the Plaintiff’s corporate veil. Even if the 2nd and 4th Defendants have applied to lift the Plaintiff’s corporate veil, such an application cannot be allowed. This is because to lift a company’s corporate veil, 2 recent Federal Court judgments require the 2nd and 4th Defendants to fulfil a two-fold requirement (2 Conditions) for a party to lift a corporate veil, namely the 2nd and 4th Defendants have to satisfy the court that –

 

(a) the lifting of a corporate veil is in the interest of justice; and

 

(b) (i) there has been actual or Common Law fraud perpetrated by

 

the company in question; or

 

(b)(ii) equitable or constructive fraud has been committed by the company, such as evasion of liability by the company.

 

I rely on the following 2 Federal Court judgments which have laid down the 2 Conditions –

 

(i) Hasan Lah FCJ’s judgment in Solid Investment Ltd v Alcatel

 

Lucent (M) Sdn Bhd [2014] 3 CLJ 73, at 92; and

 

(ii) the decision of Richard Malanjum CJ (Sabah & Sarawak) in Gurbachan Singh s/o Bagawan Singh & Ors v Vellasamy s/o Pennusamy & Ors [2015] 1 MLJ 773, at paragraphs 96-99.

 

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If I have imputed or attributed the Purported Knowledge to the Plaintiff, this will have meant that the 2nd and 4th Defendants have improperly circumvented the 2 Conditions for lifting the Plaintiff’s corporate veil.

 

19. As I have decided that the Writ has been validly served at the No. A-5188 Address by AR Registered Post, Order 10 rule 1(1) RC does not require the actual receipt of the Writ by the 2nd and 4th Defendants. This is clear from the following cases:

 

(a) in Yap Ke Huat & Ors v Pembangunan Warisan Murni Sejahtera Sdn Bhd & Anor [2008] 5 MLJ 112, at 122, James Foong JCA (as he then was) delivered the following judgment of the Court of Appeal

 

11 [20] In this instance, the plaintiffs had elected to serve the writ and statement of claim on this defendant by way of sending it by prepaid AR registered post. This defendant did not challenge that such process was never undertaken. Once this process was carried out, it is our view that there is no provision in law to say that the plaintiffs must also prove that the person so named in the post had received it. This opinion is shared by Suriyadi Halim J (as he then was) when he said in Pengkalen Concrete Sdn Bhd v Chow Mooi (guarantor of Kin Hup Seng Construction Sdn Bhd) & Anor [2003] 3 MLJ 67, at p. 73:

 

In fact under sub-r 1(1) of O 10, nothing is indicated that the plaintiff must evidentially prove that the named person in the writ must be the very person who had received it ie, if it was sent by prepaid AR registered post. I therefore was satisfied that as in this case, if all the

 

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prerequisites were fulfilled, as the plaintiff had done so, the recipient being ‘Yanti’ (not the name of the defendants) did not vitiate that service.

 

[21] This sentiment seems to be repeated in another High Court decision of MBf Finance Bhd v Tiong Kieng Seng [2001] MLJU 405; [2001] 4 CLJ 38. Thus, once the writ and statement of claim are sent by AR registered post it is prima facie proof of service unless the defendant is able to rebut this.

 

[22] Flowing from this, we now need to examine the evidence to ascertain whether this defendant has adduced any creditable evidence to rebut this presumption. …”

 

(emphasis added); and

 

(b) Yap Ke Huat has been affirmed by a judgment of the Federal Court delivered by Zulkefli Makenuddin CJ (Malaya) in Maxland Sdn Bhd, at p. 10.

 

20. All the cases relied on by the 2nd and 4th Defendants can be distinguished on the ground that those cases do not have contractual provisions similar to Clauses 3.1, 3.3, 6(d), 11.1, 14.1, 14.2, 14.3(a)(iii), 14.3(b) and Schedule 1.

 

21. For the above reasons, I find that the Writ has been lawfully served on the 2nd and 4th Defendants at the No. A-5188 Address within the meaning of Order 10 rule 1(1) RC. Accordingly, the Default Judgment is regular.

 

F. Is Plaintiff estopped from relying on Guarantee?

 

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22. Section 115 EA provides as follows:

 

When one person has by his declaration, act or omission intentionally caused or permitted another person to believe a thing to be true and to act upon such belief, otherwise than but for that belief he would have acted, neither he nor his representative in interest shall be allowed in any suit or proceeding between himself and that person or his representative in interest to deny the truth of that thing.”

 

(emphasis added).

 

23. The Plaintiff is not estopped from relying on Clauses 3.1, 3.3, 6(d), 11.1, 14.1, 14.2, 14.3(a)(iii), 14.3(b) and Schedule 1. This is due to the following reasons:

 

(a) the Plaintiff has not by any declaration, act or omission ‘‘intentionally caused or permitted” the 2nd and 4th Defendants “to believe” that the Plaintiff would not rely on Clauses 3.1, 3.3, 6(d), 11.1, 14.1, 14.2, 14.3(a)(iii), 14.3(b) and Schedule 1. As such, there is no room to apply s 115 EA in this case;

 

(b) in this case the Plaintiff has not been guilty of any inequitable conduct so as to attract the application of the equitable estoppel doctrine;

 

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(c) the 2 cases cited by the 2nd and 4th Defendants, namely Boustead Trading (1985) Sdn Bhd and Nirwana Construction Sdn Bhd, did

 

not concern guarantees. Nor were there contractual provisions such as Clauses 3.1, 3.3, 6(d), 11.1, 14.1, 14.2, 14.3(a)(iii), 14.3(b) and Schedule 1 in those 2 cases; and

 

(d) guarantees are commonly given to financial institutions as security for repayment of loans and credit facilities to financial institutions (Security Transaction). Parties have the freedom to provide guarantees and the liberty to agree to their terms and conditions. Financial institutions grant loans and credit facilities based on, among others, the provision of guarantees. If there is no application of s 115 EA and if a financial institution is not guilty of any inequitable conduct which estops the financial institution from relying on certain provisions in a guarantee (2 Circumstances), the financial institution should not be estopped from enforcing provisions in the guarantee which have been freely agreed by the guarantor and which has induced the financial institution to grant the loan or credit facility. If equitable estoppel doctrine is applied so widely and indiscriminately when the 2 Circumstances do not exist, this is contrary to the doctrine of freedom to contract and undermines the efficacy of guarantees as a Security Transaction.

 

G. Have 2nd and 4th Defendants raised a defence of merits?

 

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24. The 2nd and 4th Defendants are not able to satisfy this court that the 2 affidavits affirmed by the 2nd Defendant raise any meritorious defence which should be tried in this case. My reasons are as follows:

 

(a) for reasons elaborated above, the Plaintiff’s Demand dated 9.3.2015 sent to the No. A-5188 Address, was valid according to Clauses 14.2 and 14.3(a)(iii) read with Schedule 1. Once the Plaintiff’s Demand dated 9.3.2015 had been lawfully served on the 2nd and 4th Defendants, the 2nd and 4th Defendants “must’ pay the Demanded Sum to the Plaintiff pursuant to Clause 2(a)(ii). The Plaintiff therefore has a cause of action based on the Guarantee as against the 2nd and 4th Defendants. I rely on the following decisions of our apex courts –

 

(i) Salleh Abas LP’s judgment in the Supreme Court case of Mok Hin Wah & Ors v United Malayan Banking Corp Bhd [1987] 2 MLJ 610, at 610-611;

 

(ii) the Supreme Court’s judgment given by Lee Hun Hoe CJ (Borneo) in Orang Kaya Menteri Paduka Wan Ahmad Isa Shukri bin Wan Rashid v Kwong Yik Bank Berhad [1989] 3 MLJ 155, at 156-157; and

 

(iii) the decision of Arifin Zakaria CJ in the Federal Court case of Hong Leong Bank Bhd v M Muthiah @ Nagappan & Anor and another appeal [2014] 1 MLJ 1, at 9;

 

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(b) the 2nd and 4th Defendants are liable to the Plaintiff as “principal obligors” under Clause 2(a)(i). The effect of a “principal obligor’ clause or “principal debtor’ clause is far-reaching according to the Federal Court’s judgment delivered by Zulkefli Makinuddin CJ (Malaya) in Andrew Lee Siew Ling v United Overseas Bank (M) Bhd [2013] 1 MLJ 449, at 459-460;

 

(c) according to Clause 2(b)(i), the 2nd and 4th Defendants are jointly and severally liable to the Plaintiff under the Guarantee; and

 

(d) Clause 2(a)(iii) imposed a separate and independent obligation on the 2nd and 4th Defendants to indemnify the Plaintiff. The following cases are relevant –

 

(i) Andrew Lee Siew Ling, at p. 459-460; and

 

(ii) Gopal Sri Ram JCA’s (as he then was) judgment in the Court of Appeal case of Sia Siew Hong & Ors v Lim Gim Chian & Anor [1995] 3 MLJ 141, at 147-148.

 

25. I am not able to accept the contention by the 2nd and 4th Defendants that the Guarantee has been tainted with illegality and fraud. Section 24 CA provides as follows:

 

“What considerations and objects are lawful, and what not

 

24. The consideration or object of an agreement is lawful, unless –

 

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(a) it is forbidden by a law;

 

(b) it is of such a nature that, if permitted, it would defeat any law;

 

(c) it is fraudulent;

 

(d) it involves or implies injury to the person or property of another; or

 

(e) the court regards it as immoral, or opposed to public policy.

 

In each of the above cases, the consideration or object of an agreement is said to be unlawful. Every agreement of which the object or consideration is unlawful is void.’

 

26. The 2nd Defendant’s 2 affidavits did not disclose any averment regarding

 

(a) the circumstances in s 24(a), (b), (d) and (e) CA which would invalidate the Guarantee; and

 

(b) the consideration or object of the Guarantee is fraudulent so as to attract the application of s 24(c) CA.

 

27. Even if this court assumes that the Guarantee is illegal and/or fraudulent wherein the Guarantee is illegal, invalid and/or unenforceable, the 2nd and 4th Defendants still have a separate and independent obligation to

 

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indemnify the Plaintiff under Clause 2(a)(iii) read with Clauses 3.3(g) and 15.

 

28. The cases cited by the 2nd and 4th Defendants (Defendants’ Cases) can be distinguished on one or more of the following grounds:

 

(a) the Defendants’ Cases did not involve guarantees;

 

(b) the Defendants’ Cases did not concern indemnity provisions; and/or

 

(c) there is no contractual provision in the Defendants’ Cases such as Clauses 2(a)(iii), 3.3(g) and 15 which preserve the legality, validity and enforceability of the separate and independent obligation on the part of the 2nd and 4th Defendants to indemnify the Plaintiff.

 

H. Court’s decision

 

29. Premised on the above reasons, the SAR’s Decision is affirmed and This Appeal is dismissed with costs.

 

WONG KIAN KHEONG

 

Judicial Commissioner High Court (Commercial Division) Kuala Lumpur

 

DATE: 26 JANUARY 2016

 

Counsel for Plaintiff: Ms. Nicole Fiona Wee Sue-Ren & Cik Justine Shahirah binti Ghazali

 

(Messrs Chooi & Company)

 

Counsel for 2nd & 4th Defendants: Ms. Soo San San (Messrs Paul Ong & Associates)

 

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