1. ) East West College Sdn Bhd v Ambank (M) Berhad (WA-12ANCC-41-06/2023)

EAST WEST COLLEGE SDN BHD [No. Syarikat: 199901011455 (486355-P)]

EASTWEST EDU SDN BHD [No. Syarikat: 200701016918 (774927-M)]

NUR DIYANAH BINTI ABDUL MURAD (No. K/P: 880728-05-5070)

HABIBAH BINTI MOHD JONED (No. K/P: 630806-05-5550)

SHABISMI BINTI MOHD SHARIF … PERAYU - (No. K/P: 550404-05-5232) PERAYU DAN AMBANK (M) BERHAD (No. Syarikat: 8515-D) … RESPONDEN Page 2 of 12 (DALAM MAHKAMAH SESYEN DI KUALA LUMPUR DI DALAM WILAYAH PERSEKUTUAN, MALAYSIA GUAMAN SIVIL NO.: WA-B52NCC-765-10/2022 ANTARA AMBANK (M) BERHAD (No. Syarikat: 8515-D) … PLAINTIF

EAST WEST COLLEGE SDN BHD [No. Syarikat: 199901011455 (486355-P)]

EASTWEST EDU SDN BHD [No. Syarikat: 200701016918 (774927-M)]

NUR DIYANAH BINTI ABDUL MURAD (No. K/P: 880728-05-5070)

HABIBAH BINTI MOHD JONED (No. K/P: 630806-05-5550)

SHABISMI BINTI MOHD SHARIF … DEFENDAN - (No. K/P: 550404-05-5232) DEFENDAN Page 3 of 12 GROUNDS OF JUDGMENT (Enclosure 28)

This appeal arises from the decision of the Sessions Court on 26.5.2023, allowing the Respondent’s application for summary judgment against the 1st Appellant, East West College Sdn Bhd, and the 2nd to 5th Appellants as guarantors.

The Appellants filed the present Notice of Application dated 20.9.2024 (Enclosure 28) seeking leave under Order 55 rule 7 of the Rules of Court 2012 and/or the Court’s inherent powers to adduce fresh evidence at the appeal stage (“this Application”).

The new evidence sought to be introduced comprised: i) a letter from Credit Guarantee Corporation Malaysia Berhad (“CGC”) dated 22.8.2024; and ii) a document entitled Credit Enhancer Scheme Guideline.

The Appellants contended that these documents were only recently obtained, having come into existence after the Sessions Court’s decision on summary judgment, and would have a material bearing on the appeal. Page 4 of 12 A] PRELIMINARY ISSUE – DEFECTIVE RELIEFS

Before turning to the merits, it is pertinent to note that the Notice of Application itself is procedurally defective. In prayer

(ii), the Appellants sought leave to “adduce new documents and/or fresh evidence” without identifying precisely what those documents were.

Prayers (i) and (ii) of this Application state as follows: “ii. Bahawa Perayu diberikan kebenaran untuk memasukkan dokumen-dokumen dan/atau keterangan baru yang baru sahaja diperolehi untuk kegunaan pendengaran Rayuan Perayu ini; ii. Perayu dibenarkan untuk menfailkan Afidavit bagi memasukkan dokumen-dokumen tersebut;” (own emphasis added)

The “dokumen-dokumen dan/atau keterangan baru” and “dokumen-dokumen tersebut” are not defined or identified.

This lack of specificity rendered this Application vague and ambiguous, as it was unclear what material the Appellants sought to introduce.

Such deficiency goes to the competency of this Application and, even on that basis alone, would justify its dismissal. Page 5 of 12 B]

The Appellants submitted that the CGC letter confirms a 70 per cent guarantee in respect of the loan facility granted by the Respondent to the 1st Appellant. They contended that this information was unavailable during the Sessions Court hearing, which had proceeded by way of summary judgment without oral evidence.

Relying on Order 55 rule 7 of the Rules of Court 2012 and Ladd v. Marshall [1954] 3 All ER 745, the Appellants argued that the proposed evidence, if admitted, would probably have an important influence on the result of the case and is credible on its face. They further urged that the Court should exercise its discretion in the interest of justice. C]

The Respondent contended that the issue of CGC was never pleaded in the Appellants’ Statement of Defence or any affidavit evidence, and that the Appellants are bound by their pleadings (Samuel Naik Siang Ting v. Public Bank Bhd [2015] 6 MLJ 1; RHB Bank Bhd v. Kwan Chew Holdings Sdn Bhd [2010] 2 MLJ 188).

The Respondent further argued that the CGC documents could have been obtained with reasonable diligence well before the hearing below. The Sessions Court had delivered Page 6 of 12 its decision on 26.5.2023, yet the Appellants only sought clarification from CGC in August 2024 (CGC letter dated 22.8.2024) and filed this application a month later, on 20.9.2024. This, according to the Respondent, exemplified a lack of diligence and was a “delayed rescue operation” and an attempt to reconstruct their defence.

The Respondent also submitted that even if admitted, the CGC letter would not have had or been likely to have a determining influence on the Sessions Court’s decision. The letter merely records that CGC had classified the borrower’s status as “Cancelled Fully Paid” based on the Respondent’s notification and does not show that CGC assumed liability for the Appellants’ debt. No guarantee agreement was produced, and the loan documents impose joint and several liability on the Appellants alone.

The Respondent further argued that the Credit Enhancer Scheme Guideline is not “evidence” within the meaning of Order 55 rule 7, as it is merely explanatory and not a fact in issue. It therefore cannot qualify as fresh evidence for the purpose of the appeal. D]

Under Order 55 rule 7 of the of the Rules of Court 2012, fresh evidence may be admitted only if: Page 7 of 12 i) it was not available at the hearing below despite reasonable diligence; and ii) it would probably have had a determining influence on the decision. These two conditions are cumulative.

Applying the first condition, I find that the Appellants have not demonstrated that the CGC letter could not have been obtained with reasonable diligence. The loan facilities and letters of offer dated 16.3.2017, 8.4.2020 and 13.4.2021 explicitly refer to CGC coverage. The Appellants, being parties to those facilities, were fully aware of the CGC arrangement and could have sought clarification earlier. In particular, the Sessions Court delivered its decision on 26.5.2023, yet the Appellants only approached CGC in August 2024 and filed this Application almost a month later, demonstrating significant and unexplained delay. Such delay further underscores the absence of reasonable diligence required under Order 55 rule 7 of the Rules of Court 2012. Their explanation that the evidence surfaced only after the Sessions Court decision is insufficient to satisfy the diligence requirement.

Moreover, the CGC issue was never pleaded in the defence or raised in any affidavit. Allowing its introduction now would contravene the well-settled rule that parties are bound by their pleadings (Samuel Naik (supra); RHB Bank (supra)). The Courts have consistently declined to admit fresh evidence that Page 8 of 12 introduces a new and inconsistent defence (Chua Cha San v. Syarikat Getah Sin Eng Leong Sdn Bhd [2005] 8 CLJ 65). This Application is an afterthought and amounts to re-opening a case already decided on a clear record.

In paragraph 8 of their Affidavit in Reply (Enclosure 33) the Appellants had candidly admitted that they had not specifically raised the issue on CGC, although they were fully aware of the terms related to CGC as stated in the agreement signed by the parties: “8. Kami menegaskan bahawa walaupun isu ini tidak dibangkitkan secara spesifik, namun, klausa berkenaan dengan CGC ini jelas diperuntukkan dalam perjanjian yang ditandatangani oleh pihak-pihak...” (own emphasis added)

On the second condition, I am not satisfied that the CGC letter would have had a determining influence on the Sessions Court’s decision. The letter does not establish that CGC had any obligation to pay the Respondent for the loan default. Its reference to “Cancelled Fully Paid” merely reflects internal classification and does not constitute payment of the Appellants’ indebtedness. In contrast, the Respondent has produced the certificates of indebtedness and account statements showing amounts outstanding. Accordingly, the Page 9 of 12 purported fresh evidence lacks materiality and probative value.

The Credit Enhancer Scheme Guideline, being a general policy document, also has no bearing on the specific contractual obligations between the parties and cannot qualify as relevant or credible evidence for the purposes of this appeal.

Even if I were to consider the broader discretion urged by the Appellants under Ladd v. Marshall (supra), this case does not fall within the rare and exceptional circumstances justifying departure from the cumulative test. As emphasised in Dato’ Ahmad Johari Bin Tun Abdul Razak v. A Santamil Selvi A/P Alau Malay @ Anna Malay (Administratrix For The Estate Of Balasubramaniam A/L Perumal, Deceased) & Ors And Other Appeals [2020] 6 MLJ 133, applications of this nature should not be used to re-construct a case or fill gaps in evidence after the event.

Litigation must come to an end. To allow fresh evidence in these circumstances would undermine the principle of finality and the economical use of judicial time. E]

Having considered the parties’ affidavits and submissions, I find that the Appellants have failed to satisfy either condition Page 10 of 12 under Order 55 rule 7 of the Rules of Court 2012 or the principles in Ladd v. Marshall (supra). The CGC 22.8.2024 letter and the Guideline could have been obtained earlier with reasonable diligence and, in any event, would not have had a determining influence on the Sessions Court’s decision.

For the reasons stated above, I dismissed this Application in Enclosure 28 with costs. Dated this 24th day of October, 2025 -SGD- (WAN MUHAMMAD AMIN BIN WAN YAHYA) JUDGE HIGH COURT OF MALAYA, (COMMERCIAL DIVISION (NCC 3)) HIGH COURT OF KUALA LUMPUR IN THE FEDERAL TERRITORY, MALAYSIA Page 11 of 12 COUNSEL FOR THE APPELLANTS/ DEFENDANTS : K Karthigesan A/L Shanmugam (Kanagavalli A/P Krishnamoorthy and Thamayanthy A/P A. Rajasekaran together him) Messrs Karthig Shan No. 265-1, Pusat Dagangan Sendayan 3/5, Pusat Dagangan Sendayan, 71590 Banda Sri Sendayan, Negeri Sembilan Tel: 06-6307441 Email: karthigshan@gmail.com COUNSEL FOR THE RESPONDENT/ PLAINTIFF : Robin Lim (Yuganiya Rajalingam together with him) Messrs Azhar & Wong 16-08, Level 16, Menara Centara, 360, Jalan Tuanku Abdul Rahman, 50100 Kuala Lumpur Tel: 03-26023898 Email: azharw@azharwong.com.my LEGISLATION / RULES CITED Rules of Court 2012 ▪ Order 55 rule 7

Chua Cha San v. Syarikat Getah Sin Eng Leong Sdn Bhd [2005]

Dato’ Ahmad Johari Bin Tun Abdul Razak v. A Santamil Selvi A/P Alau Malay @ Anna Malay (Administratrix For The Estate Of Balasubramaniam A/L Perumal, Deceased) & Ors And Other

Ladd v. Marshall [1954] 3 All ER 745

RHB Bank Bhd v. Kwan Chew Holdings Sdn Bhd [2010] 2 MLJ 188

Samuel Naik Siang Ting v. Public Bank Bhd [2015] 6 MLJ 1