1. ) Klk Construction Sdn. Bhd. v Modern Notion Sdn. Bhd. (WA-12ANCC-143-12/2022)

KLK CONSTRUCTION SDN. BHD. (Company No.: (199301019929 (274667-P))

KHO THEAN CHYE (No. K/P: 600624-10-5265)

CHAN KENG HOCK (No. K/P: 651016-04-5393) ...APPELLANTS AND MODERN NOTION SDN. BHD. (Company No.: 1212866-K) ...RESPONDENT GROUNDS OF JUDGMENT Introduction [1] This appeal by the Appellants emanated from the decision of the learned Sessions Court judge (“LSCJ”) dated 25.11.2022 in allowing with costs the Respondent’s summary judgment application against the Appellants pursuant to Order 14 of the Rules of Court 2012 (“ROC 2012”). [2] On 24.3.23, I heard the appeal, gave broad grounds of decision and dismissed the appeal with costs. I now give full reasons for my decision. [3] In this appeal, the Appellants and the Respondent will be referred to as the Defendants and Plaintiff respectively, as they were in the Court below. Background [4] By a credit facility application form signed by the 2nd and 3rd Defendants, as Directors of the 1st Defendant, the 1st Defendant applied to the Plaintiff, and the Plaintiff agreed to sell, supply and deliver goods to the 1st Defendant on credit basis. [5] In consideration of the Plaintiff agreeing to supply goods or to continue to supply goods or to grant trading credit facility to the 1st Defendant, the 2nd and 3rd Defendant by a Guarantee dated 5.3.2021 jointly and/or severally guaranteed the repayment of all debts owed by the 1st Defendant to the Plaintiff up to maximum sum of RM200,000 excluding interest as principal debtors and not merely as sureties together with legal charges and expenses (on a solicitor client basis) which the Plaintiff may incur in enforcing payment of the outstanding sum owed by the 1st Defendant ("the Guarantee"). The Guarantee was also expressed to be a continuing guarantee. [6] As at 30.4.2022, there was a sum of RM157,067.37 due and owing to the Plaintiff as shown in the statement of accounts at exhibit LYF-6. The Plaintiff issued through its solicitors, a demand dated 20.5.2022 to all the Defendants for payment of the sum of RM157,067.37 but to no avail. At the Sessions Court [7] Due to non-payment, the Plaintiff filed action in the Sessions Court to claim a sum of RM161,664.15 outstanding as at 30.6.2022, interest and costs of the action against all three Defendants jointly and severally. [8] The Plaintiff’s application in Enclosure 8 for summary judgment against all three Defendants was allowed by the LSCJ on 25.11.2022. The LSCJ agreed with Counsel for the Plaintiff and found no triable issues were raised by the Defendants. Appeal to this court [9] Dissatisfied with the LSCJ’s decision, the Defendants appealed to this court. [10] l am mindful that pursuant to section 29 of the Courts of Judicature Act 1964 and Order 55 Rule 2 of the Rules of Court 2012 (“ROC 2012”), the appeal is by way of a rehearing. [11] In moving this Court to allow the appeal, learned counsel for the Defendants, Mr. HY Lee relied on his written submission which I notice, was by and large, a rehash of the submissions in the court below. The essence of the Defendants’ contentions is that there are issues to be tried on whether the 1st Defendant has ever ordered and received the alleged goods or acknowledged the receipt of the goods as alleged by the Respondent/Plaintiff; and whether the Plaintiff’s claim ‘are illegally unfounded or contrary to the law and equity’ premised on the following postulations:

The 1st Defendant neither ordered and received the alleged goods nor acknowledged the receipt of the goods as alleged;

(ii) The 1st Defendant did not receive the documents as alleged in paragraph 9 of the Plaintiff’s Affidavit In Support (being the demands for payment) and ‘denied that the total debt RM161,664.15 as at June 2022’ (sic);

(iii) The 1st Defendant categorically denied applying and or accepting the credit facility application and denied any agreement on its alleged terms of the credit facility application;

(iv) The 2nd and 3rd Defendant:

did not sign the Guarantee and that the alleged signatures of the Defendants are false;

never acknowledged receipt of the said Guarantee (which is denied);

contends the Guarantee (which is denied) is void and illegal under the Contracts Acts 1950 and or equity;

never agreed to the terms of the conditions in the Guarantee (which is denied);

never owed the Respondent/Plaintiff;

place the Plaintiff on strict evidence to prove the validity of the Guarantee.

The Defendants objected to the calculation of interest, the interest rate and the amount of interest claimed by the Plaintiff since there was no agreement for the payment of interest;

(vi) The calculation of interest is ‘unreasonable illegal contrary to law and equity’(sic);

(vii) ‘There was no agreement for the interest payments of 1.5% per month after the expiry of the approved credit period from the date under any/all accounts payable and payable as alleged’;

(viii) The Defendants other than admitting receiving the Plaintiff solicitor's letter of demand dated 20-5-2022 given by a third party and ‘having replyed (sic) to the said letter’ through the Defendants solicitor's letter dated 28-7-2022 ‘other content in paragraphs 10, 11 and 12 of the Plaintiff's Affidavit In Support are denied and that the said claim (which is denied) is illegally and unlawfully and equity.’ (sic). Applicable law and findings [12] It is trite law following National Company For Foreign Trade v. Kayu Raya Sdn. Bhd [1984] 2 MLJ 300; [1984] 2 CLJ 220 and Cempaka Finance Bhd v Ho Lai Ying & Anor [2006] 2 MLJ 685; [2006] 3 CLJ 544; [2007] 1 AMR 525, to be prima facie entitled to summary judgment, the Plaintiff has to fulfil the following preliminary requirements:

12.1 the statement of claim must have been served on the

12.2 the Defendants must have entered an appearance; and

12.3 the affidavit-in-support of the application must comply with the requirements of Order 14 rule 2 of the Rules of Court 2012. [13] The Plaintiff in this case having satisfied the preliminary requirements that the Order 14 application has been properly filed, the burden then shifts to the Defendants to satisfy the Court why judgment should not be given against them. It is important to be reminded that in an Order 14 ROC 2012 application for summary judgment, the Court must look at the matter as a whole and ask itself whether the Defendants have satisfied the Court that there is an issue or question in dispute which ought to be tried, or there ought for some other reason to be a trial of that claim or part of the claim. [14] Where a defendant is able to demonstrate facts to show that he has raised a defence or reasonable grounds for setting up a defence or even a fair probability that he has a bona fide defence, he ought to be given leave to defend. This discretion lies with the judge. [15] It is also to be borne in mind that the defendant must raise an arguable issue that requires a trial in order to determine it: Voo Min En & Ors. v. Leong Chung Fatt [1982] 2 MLJ 241. [16] In Bank Negara Malaysia v. Mohd Ismail Ali Johor & Ors [1992] 1 MLJ 400; [1992] 1 CLJ Rep 14 the Supreme Court helpfully summarised the approach to be taken in dealing with the affidavits: “In our view, basic to the application of all those legal propositions, is the requirement under O. 14 for the Court to be satisfied on affidavit evidence that the defence not only has raised an issue but also that the said issue is triable. The determination of whether an issue is or is not triable must necessarily depend on the law arising from each case as disclosed in the affidavit evidence before the Court…. Under O. 14 when a fact is asserted by one party and denied by another, and such denial is equivocal or lacking in precision or is inconsistent with undisputed contemporary documents or other statement by the same deponent or is inherently improbable in itself, the judge has a duty to reject such assertion or denial, thereby rendering the issue as not triable. In our opinion, unless this principle is adhered to, a Judge is in no position to exercise his discretion judicially under an O.14 application. Thus, apart from identifying the issues of fact or law, the Court must go one step further and determine whether they are triable. This principle is sometimes expressed by the statement that a complete defence need not be shown. The defence set up need only show that there is a triable issue. Where the issue raised is solely a question of law without reference to any facts or where the facts are clear and undisputed, the court should exercise its duty under O 14. If the legal point is understood and the court is satisfied that it is unarguable, the court is not prevented from granting a summary judgment merely because 'the question of law is at first blush of some complexity and therefore takes a little longer to understand'. (See Cow v Casey 6 and European Asian Bank AG v Punjab & Sind Bank 7 at p 516.)” [17] The threshold to resist summary judgment is relatively very low as a defendant need only raise one triable issue to be given leave to defend - South East Asia Insurance Bhd v Kerajaan Malaysia [1996] MLJU 642; [1998] 1 CLJ 1045; HSBC Bank Malaysia Bhd v Ng Tien Beng & Ors [2008] 9 CLJ 631; Stamford College Bhd v Iris Corp Bhd [2014] 8 MLJ 178. [18] In Southern Finance Bhd v Sun City Development Sdn Bhd & Anor [2006] 7 CLJ 464, it was held: “The general principle is where a Defendant shows that he has a fair case for defence or reasonable grounds for setting up a defence or even a fair probability that he has a bona fide defence he ought to be given leave to defend (Saw v. Hakim 5 TLR 72). A Defendant should not be shut out from defending unless it is very clear indeed that he has no case in the action under discussion (Sheppards v. Wilkinson 6 TLR 13). The power to give summary judgment under O. 14 is “intended only to apply to cases where there is no reasonable doubt that a Plaintiff is entitled to judgment and where therefore it is inexpedient to allow a Defendant to defend for mere purposes of delay”. (Jones v. Stone [1894] AC 122). Where there is any serious conflict to matters of fact or where any real difficulty as to matters of law arises, summary judgment under O. 14 should not be granted. (Electric and General Corpn. v. Thomson-Houston Electric 10 TLR 103). But, however difficult the point of law is, once it is understood and the Court is satisfied that it is really unarguable it will give final judgment (Cow v. Casey [1949] 1 KB 481). (See Percetakan Solai Sdn Bhd v. Kin Kwok Daily News Sdn Bhd & Anor [1985] CLJ (Rep) 632 at p. 637).” [19] Thus, for the defendant to succeed in being given leave to defend, he must convince this Court that he has raised an issue of fact and/or law to be tried in this action, and if he cannot, he has to show there is “some other reason for trial” pursuant to O. 14 r. 3(1) ROC 2012. [20] With the above principles in mind, I turn now to deal with the appeal. The issues [21] Separating the wheat from the chaff, in my view, the issues can be condensed into:

whether the 1st Defendant has ever ordered and received the alleged goods and hence liable to pay the Plaintiff the sum claimed;

(ii) whether the 1st Defendant applied for and accepted the credit facility application;

(iii) whether the Plaintiff is entitled to charge interest at 1.5% for late payment;

(iv) whether the Guarantee is enforceable against the 2nd and 3rd Defendants Whether the 1st Defendant applied for and accepted the Credit Facility Application? [22] I would take the 2nd issue first. [23] I note that the credit facility application was signed by the 2nd and 3rd Defendants as directors of the 1st Defendant and bears the 1st Defendant’s chop. These 2 directors have not denied signing the credit facility application form. Neither did the 1st Defendant deny that it was not its chop on the credit facility application form. As such, plainly, the 1st Defendant’s assertion that it has no knowledge of the credit facility application is bereft of merits. I have every duty to reject such an ill founded bare denial of knowledge, thereby rendering the issue as not triable. The 1st Defendant is thus bound by the terms of the credit facility application. If I may add, I do not appreciate what the beating of drums is all about as in fact, viewed holistically, credit terms in fact benefited the 1st Defendant as it was given time to pay for the goods supplied, but once the credit period is up, it has to pay interest for overdue debts which in this case was agreed at 1.5% per month. The imposition of interest at this rate is neither unreasonable nor illegal as the law journals are replete with cases of such nature, a few examples of which are cited at paragraph 36 of this judgment. Whether the 1st Defendant has ever ordered and received the alleged goods and hence liable to pay the Plaintiff the sum claimed? [24] At the outset, it ought to be borne in mind that the burden is on the 1st Defendant to show why summary judgment should not be entered. In postulating that goods were not ordered and delivered, it is of noteworthy significance that not only the 1st Defendant, but the 2nd and 3rd Defendants as well (who had contracted under the Guarantee to be principal debtor and not just as sureties) could not even condescend into particulars on what goods were not received. Weighing this bare assertion against each delivery order which bears the 1st Defendant’s stamp of acknowledgment of receipt, it is patently obvious that the 1st Defendant is clutching at straws. In any case, bare denials or assertions do not constitute evidence and they cannot give rise to triable issues - Chen Heng Ping @ Tian Seow Hock & 5 Ors v. Intradagang Merchant Bankers (M) Berhad [1995] 3 CLJ 690. [25] The delivery orders exhibited are not to be confused with the weighbridge tickets that accompany the delivery orders. [26] The Defendants have cited the cases of Independent Oil Tools Malaysia Sdn Bhd v. Olio Resources Sdn Bhd [2018] 1 LNS 1334 and Wescourt Design Sdn Bhd v. Wescourt Furnishing (M) Sdn Bhd [2015] 1 LNS 656 to bring home the point that the Plaintiff ought to produce in court the purchase orders, delivery orders and the invoices for the goods. [27] I find that the Plaintiff had done precisely just that. In supporting its claim, the Plaintiff has produced:

27.1 the purchase orders at exhibit LYF-3 pages 50-66 of Appeal

27.2 the invoices at exhibit LYF-4 pages 68 to 122 of Appeal

27.3 delivery orders at exhibit LYF-5 pages 124-322 of Appeal

27.4 the statement of account at exhibit LYF-6 pages 324 – 325 of Appeal Record which the Plaintiff submitted has sufficiently proven the 1st Defendant’s liability for goods sold and delivered. [28] I accept the Plaintiff’s submission. These documents produced by the Plaintiff collectively constitute a binding contract which has been reduced into writing – see Caltex Oil Malaysia Ltd v Classic Best Sdn Bhd & Ors [2007] 4 MLJ 772 where Suriyadi J (as he then was) held as follows: “In coming to a decision in cases involving goods sold and delivered such as in this case, I would place due emphasis on the written documents, delivery notes and the debit notes. These documents would collectively constitute a contract reduced into writing.” [29] Each of the invoices sent to the 1st Defendant by courier as evidenced by the courier notes at exhibit LYF-(2)-2 at pages 53 to 79 of volume 2 of the Appeal Record, embodied a note that any discrepancy is to be notified within 2 days while the statement of accounts has a note stating that any discrepancy is to be notified within 10 days. The Defendants have not shown they have questioned the account or notified the Plaintiff of any discrepancy in the amount claimed. [30] In Caltex Oil Malaysia Ltd (supra), Suriyadi J referred to the case of Syarikat Tan Thiam Siong Sdn Bhd [1983] 1 CLJ 256, also a case on goods sold and delivered, where the High Court, granting the Plaintiff’s application for Summary Judgment held that: "The law is that in the event of non-query of an account-stated came into existence which created an estoppel against the defendant from querying the accounts thereafter. There are situations for example if there was fraud, where a query may be permitted but on the facts of the case, no such situation existed." [31] Suriyadi J in referring to the said case, held further that: "Applying the above principles to the present case, it is an undisputed fact that the plaintiff had sent statements of accounts to the first defendant and the first defendant had not questioned the plaintiff on the said accounts. This means that a situation of 'account-stated' had arisen and the defendants are thereby estopped from now questioning the statement of accounts." [32] The Defendants’ non query and failure to reply the Plaintiff’s solicitors letter of demand dated 20.5.2022 fortifies the Plaintiff’s claim. In this regard, I have not ignored the Defendants’ allegation in their defence as well as affidavit opposing summary judgment that they have ‘replyed’ (sic) to the said letter through the Defendants solicitor's letter dated 28-7-2022. I reject such an allegation that there was a reply as firstly, there is an abject failure on the Defendants’ part to condescend into details of such a reply. Second, I find it eye-brow raising that such a reply if it existed at all, was not produced in court. Surely, the court is not expected to ‘‘spin a coin or consult an astrologer’’ as to what the reply is all about. In my considered view, it is inherently probable that such an alleged reply is purely illusory. Thus, the Defendants’ allegation of having made a reply remained just that – an allegation, a bare one at that which is also both self-serving and a disingenuous opportunistic posturing. [33] The law that the Defendants are also estopped from now asserting that the amount claimed is not due is well settled by a line of frequently cited authorities. See for example: i. Boustead Trading Sdn Bhd-v-Arab-Malaysian Merchant Bank Berhad [1995] 3 MLJ 331; [1995] 4 CLJ 283 FC at pages 284 and 285, where the Federal Court held that: “[6] Justice of the present case clearly lies in favour of considering the estoppel issue. At the time it received the said invoices of Chemitrade bearing the indorsement specifying the 14-day limit for objection, the appellant had a choice. It could have told the respondent that the 14-day limit was not part of the original arrangement, that it amounted to an abrogation of its rights and that it was not prepared to be bound by the limitation. But it did nothing of the sort. It did not however merely remain silent, for thereafter it actually made payments to those very invoices without any protest. [7] A reasonable man similarly circumstanced as the respondent would have been entitled to assume, as the respondent did, that the appellant was agreeable to the imposition of the 14-day limit. The respondent was clearly influenced by the conduct of the appellant when it paid Chemitrade for those very invoices, and this the respondent would not have done had the appellant protested. The appellant’s attempt to raise this point some seven months later, must be classified as unconscionable and inequitable conduct. It ought not therefore to be permitted to question the validity of the indorsement. [8] The appellant should be estopped from asserting that nothing was due on the impugned invoices. It was the appellant’s silence during the 14-day period that led the respondent to make the payment that was due to Chemitrade. The respondent was therefore entitled to assume that the invoices were good for payment. It would be most unjust for the appellant to now suggest that the respondent ought not to have paid on the disputed invoices. (Emphasis added)” ii. MP Factors Sdn Bhd v Suang Yan Projects Sdn Bhd & Ors [2007] 8 MLJ 602 [HC]: Page 613 “It is an undisputed fact that after being served with the notice to repurchase, the defendants did not at any time raise any protest that the amount demanded is incorrect or that no amount is due and payable to the plaintiff under the agreement. Thus, by the defendants' silence they are estopped from now raising this challenge as the plaintiff was lulled into the belief that the defendants did not intend to challenge the existence of a demand to repurchase the debt, or the correctness of the amount owed by the defendants under the Factoring Agreement.” Page 615 “Each of the invoices also bear a clear statement that any objection to the bills or its items must be notified to them in writing within 14 days of its receipt, failing which the bills would be deemed final and conclusive against the main contractor. Consequently, these invoices are deemed good for payment as there was no objection from the main contractor within the stipulated period. More importantly, the plaintiff had acted to its detriment in releasing the initial payments to the first defendant based on the aforesaid invoices. The defendants ought now to be estopped from stating that they do not owe the plaintiff the sum claimed or any other sums (see Boustead Trading (1985) Sdn Bhd v Arab Malaysian Merchant Bank Sdn Bhd [1995] 3 MLJ 331; Hong Leong Leasing SdnBhd v Far East Knitting Sdn Bhd [1996] 2 MLJ 251; Chong Yoong Choy v UOL Factoring Sdn Bhd [1996] 2 CLJ 605 ). It is also of material bearing to note that the defendants failed to condescend upon any particulars as to the basis of their dispute on the sums claimed by the plaintiff. And, neither did they show in any manner, any manifest error on the face of the Certificate of Indebtedness. Hence, they are bound by the contents of the Certificate (see Chen Heng Ping &Ors v Intradagang Merchant Bankers (M) Bhd [1995] 2 MLJ 363).” (Emphasis added) iii. HTC GLOBAL SERVICES MSC SDN BHD v KOMPAKAR EBIZ SDN BHD [2008] 1 LNS 419 [HC]: “On each and every invoice in Exhibit "S-1" of Enclosure 8, there is a clear statement "Any discrepancies in the invoices should be informed to us within 7 days from the invoice date." There was no protest after the invoices were issued and received by the defendant. See MP Factors Sdn Bhd v. Suangyan Projects Sdn Bhd & 3 Ors [2006] 1 LNS 358; [2007] 4 AMR 327 applying the Federal Court case of Boustead Trading (1985) SdnBhd v. Arab-Malaysian Merchant Bank SdnBhd [1995] 4 CLJ 283; [1995] 3 AMR 2871 per Gopal Sri Ram JCA co-opted at page 336: Each of the invoices also bear a clear statement that any objection to the bills or its items must be notified to them in writing within fourteen (14) days of its receipt, failing which the bills would be deemed final and conclusive against the main contractor. Consequently, these invoices are deemed good for payment as there was no objection from the main contractor within the stipulated period. More importantly, the plaintiff had acted to its detriment in releasing the initial payments to the first defendant based on the aforesaid invoices. The defendants ought now to be estopped from stating that they do not owe the plaintiff the sum claimed or any other sums. ……….. The law is clear. Where a party fails to raise any objection on the invoice of which they have been served relating to any contract it is to be estopped from denying that payment is due from them. See Syarikat Pakar Kayu dan Perdagangan Sdn Bhd v. Maa-sk Sdn Bhd [1986] CLJ 694 (Rep); [1986] 1 CLJ 595; MP Factors Sdn Bhd v.

Similarly, with respect to the third contract which is oral in nature, it is the duty of the defendant to object to the invoices that had been issued and received by them and having failed to do so the same principle of estoppel will apply.” (Emphasis added) Whether the Plaintiff is entitled to charge interest at 1.5% for late payment? [34] The Defendants posited that charging interest at 1.5% per month is illegal. I do not agree. The imposition of 1.5% interest on overdue accounts is in fact common practice in cases involving goods sold and delivered. The futility of this assertion in my view is underscored by the following:

34.1 the delivery orders, invoices and statement of accounts embodied a statement that interest of 1.5% per month will be charged on overdue payments;

34.2 this right to charge 1.5 % per month on overdue accounts was also set out in clause (b) of the credit facility application form; [35] Not only that. The Defendants have not shown any whisper of protest to the charging of such interest and are estopped from so doing after action is filed. [36] It is abundantly clear to this Court that the Plaintiff is contractually entitled to such a rate of interest for overdue payment, and estoppel also applies against the Defendants from disputing the Plaintiff’s right to do so, see Woon Hoe Kan & Sons Sdn Bhd v Bandar Raya Developments Bhd [1974] 1 MLJ 24 FC; Boustead Trading supra where Chemitrade did not protest on the interest; Perangsang Dagang Sdn Bhd v Tanjung Teras Sdn Bhd and Others [2007] MLJU 716; Caltex Oil Malaysia Ltd v Classic Best Sdn Bhd & Ors [2007] 4 MLJ 772, Daya Anika Sdn Bhd v Kuan Ah Hock [1998] 6 MLJ 537; Tansa Enterprise Sdn Bhd v Temenang Engineering Sdn Bhd [1994] 2 MLJ 353. Whether the Guarantee is enforceable against the 2nd and 3rd Defendants? [37] The 2nd and 3rd Defendants’ alleged that they have no knowledge about the Guarantee dated 5.3.2021, never signed and agreed to the terms and conditions of the Guarantee and their signatures therein were forged, the Guarantee is illegal under the Contract Act 1950 and/or equity. These allegations beg the question “was that enough to direct that there should therefore be a trial?” [38] I think not. [39] After anxious consideration of the pleadings, affidavits and submissions, I find these allegations to ring hollow. [40] Firstly, in the face of the allegation that they did not sign the Guarantee and their signatures were forged, I find these averments ought to be construed as bare allegations and red herrings. I hold the view that forgery being a specific form of fraud, to be a serious allegation which warrants a police report to be made, but it is most surprising that both the 2nd and 3rd Defendants have not lodged or produced any police report. In my opinion, this omission is fatal. Bare assertions just like bare denials, do not constitute evidence and they cannot give rise to triable issues. [41] In Soo Lip Hong v Tee Kim Huan [2005] 4 CLJ 119, [2005] 5 AMR 576, the Court of Appeal speaking through Mohd Ghazali Yusof JCA (as he then was) said: "There was also no evidence of any police report or similar things alike to suggest that PWl was attempting to cheat DWl. In the absence of such evidence, the only irresistible factual inference I could draw would be for the purpose(s) of purchasing the relevant property by PWl from DWl as agreed by both parties as evidenced by P1.'' [42] Soo Lip Hong and a legion of case law authorities established the importance of a police report to be made and produced where allegations of fraud, forgery, cheating and the like are concerned, including Chong Wan Ping v Chow Chee Yan [2009] 1 LNS 834 where the High Court held: "For an allegation of fraud in a civil proceeding, it must be shown that a contemporaneous police report must be lodged. Otherwise, the allegations are merely bare allegations. Here, no police report was lodged against the defendant.... Therefore, the claim by the plaintiff that the defendant had defrauded them must fail.” [43] In Wong Hon Leong David v Noorazman bin Adnan [1995] 3 MLJ 283; [1995] 4 CLJ 155, CA which dealt with a summary judgment application, the police report on an allegation of bribery was made by the defendant only in the midst of the O14 application hearing. The Court of appeal had this to say at pg. 292 of the judgment: “We entirely agree with the approach of the learned judge to the weight to be given to the failure of the appellant to timeously lodge a report with the police. Further, an examination of the conduct of the appellant after the commencement of the litigation, his failure to raise this matter at the earliest opportunity in his first affidavit, and producing it, as a conjurer does, like a rabbit out of a hat, leaves us in no doubt, as it did the learned judge, that the tale was an afterthought, the machinations of a desperate litigant trying every trick in the book to escape judgment being entered against him.” [44] Worse in the instant case, it bears repetition that no police report was made at all. [45] Second, there is no denial that the signatures on the credit facility application Form and the 1st Defendant company’s statutory document, Form 24 (Return of Allotment of Shares) and the Financial Statements dated 31.8.2019 submitted by the Defendants during the application of the credit facility (at exhibit LYF (2) -1, pgs. 18 – 51 Volume 2 Appeal Record) do not belong to the 2nd and 3rd Defendant. I am entitled to compare the signatures on these documents to the signatures in the Guarantee, and they appear similar. [46] Thirdly, a mere allegation of fraud (forgery as in this case) does not ipso facto mean there must be a trial. In this regard, the approach by the Court in Radiant Splendour Sdn Bhd & Ors v. Dato’ Seri Mohd Najib Tun Abdul Razak & Ors [2020] 1 LNS 812 commends itself to me: “[40] Indubitably, this Court is minded that as per the landmark precedent in Bandar Builder Sdn Bhd and Ors v. United Malayan Banking Corporation Bhd [1993] 4 CLJ 7; [1993] 3 MLJ 36 that the discretion of the Court to strike out a case ought only to be exercised in cases where the Plaintiff’s claims is obviously and plainly unsustainable. [41] Nonetheless, this Court is also minded that it cannot resile from exercising such discretion merely because the issue and facts of the case involves allegations of fraud. And this has found favour in numerous precedents. Zabariah Mohd Yusof J (now FCJ) has held the following in the case of Datuk Hj Ishak bin Ismail v. Kenanga Investment Bank Bhd & Ors [2011] 1 LNS 1358; [2012] 7 MLJ 840: “Whether bare allegation of conspiracy of defendants was frivolous and vexatious – Civil Procedure – Striking out “The serious allegations made by the plaintiff against the defendants with regards to fraud, deceit, conspiracy, connivance in the statement of claim as compared to the evidence adduced in court clearly showed that the claim by the plaintiff against the defendants are unsustainable and not likely to succeed.” [42] This was similarly echoed by Hanipah Farikullah J (now JCA), in which Her Lordship has astutely held the following in the case of Tan Sri Halim Saad v. Tan Sri Nor Mohamed Yakcop & Ors [2014] 4 CLJ 232; [2014] 11 MLJ 379: Allegation of fraud – Striking out -- Application for -- Plaintiff’s allegation inconsistent with contemporaneous documents and inherently improbable – Whether statement of claim scandalous, frivolous, vexatious and abuse of the process of court – Whether claim clearly unsustainable Contract … There was no reason why the matter should go for trial. The plaintiff’s allegations were inconsistent with the contemporaneous documents and inherently improbable. Hence, the plaintiff’s claim was clearly unsustainable. The statement of claim was scandalous, frivolous, vexatious and an abuse of the process of the court …” [43] Thus, notwithstanding the plea of fraud and even conspiracy, such pleading of fraud may still be struck out if in case it is either inconsistent with contemporaneous documents, or it is inherently improbable and clearly unsustainable.” (Emphasis added) [47] Although Radiant Splendour is a case on a striking out application, there is no reason why the same principles on bare allegations or the allegation being inherently improbable should not apply to a summary judgment application. [48] For reasons given, I am constrained to find the 2nd and 3rd Defendant’s allegation that they did not sign the Guarantee to be inherently improbable and a misguided attempt to create a triable issue. In other words, the forgery allegation is self-serving, short on substance, tenuous, and should not be given any weight. Having signed the Guarantee, they are bound by the terms therein and are liable, not just as surety but as principal debtors as well. [49] Further, clause 2 of the Guarantee specifically stated that the Guarantee is a continuing guarantee. When construed with the rest of the terms of the Guarantee, it means until the amount guaranteed has been fully repaid, the 2nd and 3rd Defendant’s liability remain up to the limit of the Guarantee of RM200,000. [50] Other than merely making the allegation that the Guarantee is void and illegal under the Contracts Act 1950 and in equity, the Defendants’ counsel had not been helpful at all in this regard. Mere allegations made without any basis is unacceptable, embarrassing and make a mockery of the law. The Defendants should not be allowed to hide behind such bare allegations. On the facts as obtained here, I fail to appreciate why the Guarantee is illegal. I thus reject the argument. [51] The facts and circumstances here considered as a whole, I see no valid reason at all why the Guarantee is not enforceable against the 2nd and 3rd Defendants. [52] On the entirety of the evidence before the court, I would conclude that no bona fide triable issue has been raised by the Defendants, nor did they show there is “some other reason for trial” pursuant to Order 14 rule 3(1). It is my considered view that a trial will not throw any further light on the matter as all the issues canvassed in the application before the court are clear, and can be decided once and for all without going to trial. The Plaintiff should not be put through the costly process of a full trial in the circumstances as obtained here. Besides, a full trial will be wasteful of precious judicial time and resources. In this regard, it is apposite that I harken to the crisp reminder of Vincent Ng J in Suppuletchimi v Palmco Bina Sdn Bhd [1994] 2 MLJ 368: “.. No party in a proceeding is entitled to require the court to accord them valuable time of several days open court viva voce trial only upon mere or bare assertions in their affidavits…” [53] The Defendants have no defence to the Plaintiff’s claim. I am satisfied that the LSCJ was entirely correct in her decision to allow the Plaintiff ‘s application for summary judgment against the Defendants. There is simply no ground at all to warrant appellate intervention. [54] For reasons given, the appeal is dismissed with costs subject to allocator. Dated: 26th May 2023 - sgd - ……………………….. Liza Chan Sow Keng Judge High Court of Malaya at Kuala Lumpur COUNSEL: For the Appellants/Defendants : Lee Hong Yap Messrs H. Y. Lee & Co. For the Respondent/Plaintiff : Lim Yi Xin Messrs K. Y. Soo CASES REFERRED: National Company For Foreign Trade v. Kayu Raya Sdn. Bhd [1984] 2 MLJ 300; [1984] 2 CLJ 220 Cempaka Finance Bhd v Ho Lai Ying & Anor [2006] 2 MLJ 685; [2006] 3 CLJ 544; [2007] 1 AMR 525 Voo Min En & Ors. v. Leong Chung Fatt [1982] 2 MLJ 241 Bank Negara Malaysia v. Mohd Ismail Ali Johor & Ors [1992] 1 MLJ 400; [1992] 1 CLJ Rep 14 South East Asia Insurance Bhd v Kerajaan Malaysia [1996] MLJU 642; [1998] 1 CLJ 1045 HSBC Bank Malaysia Bhd v Ng Tien Beng & Ors [2008] 9 CLJ 631 Stamford College Bhd v Iris Corp Bhd [2014] 8 MLJ 178 Southern Finance Bhd v Sun City Development Sdn Bhd & Anor [2006] 7 CLJ 464 Chen Heng Ping @ Tian Seow Hock & 5 Ors v. Intradagang Merchant Bankers (M) Berhad [1995] 3 CLJ 690 Independent Oil Tools Malaysia Sdn Bhd v. Olio Resources Sdn Bhd [2018] 1 LNS 1334 Wescourt Design Sdn Bhd v. Wescourt Furnishing (M) Sdn Bhd [2015] 1 LNS 656 Caltex Oil Malaysia Ltd v Classic Best Sdn Bhd & Ors [2007] 4 MLJ 772 Boustead Trading Sdn Bhd-v-Arab-Malaysian Merchant Bank Berhad [1995] 3 MLJ 331; [1995] 4 CLJ 283 MP Factors Sdn Bhd v Suang Yan Projects Sdn Bhd & Ors [2007] 8 MLJ 602 HTC Global Services MSC Sdn Bhd v Kompakar Ebiz Sdn Bhd [2008] 1 LNS 419 Woon Hoe Kan & Sons Sdn Bhd v Bandar Raya Developments Bhd [1974] 1 MLJ 24 Perangsang Dagang Sdn Bhd v Tanjung Teras Sdn Bhd and Others [2007] MLJU 716 Daya Anika Sdn Bhd v Kuan Ah Hock [1998] 6 MLJ 537 Tansa Enterprise Sdn Bhd v Temenang Engineering Sdn Bhd [1994] 2 MLJ 353 Soo Lip Hong v Tee Kim Huan [2005] 4 CLJ 119, [2005] 5 AMR 576 Chong Wan Ping v Chow Chee Yan [2009] 1 LNS 834 Wong Hon Leong David v Noorazman bin Adnan [1995] 3 MLJ 283; [1995] 4 CLJ 155 Radiant Splendour Sdn Bhd & Ors v. Dato’ Seri Mohd Najib Tun Abdul Razak & Ors [2020] 1 LNS 812 Suppuletchimi v Palmco Bina Sdn Bhd [1994] 2 MLJ 368