1. ) Time Rina International Ltd v Nam Cheong International Ltd (WA-27NCC-54-06/2020)

TIME RINA INTERNATIONAL LTD (Company No.: LL09816)

TIME MARINE SERVICES SDN BHD (Company No.: 1017838-D)

HAMIDON BIN MD KHAYON (IC No.: 690102-10-7169)

PUTERI NAZRAHTUL BINTI OMAR (IC No.: 800826-14-6088)

AZMEL HAFIZ BIN AZIZ (IC No.: 780430-07-5441)

OMAR BIN KHALID (IC No.: 540528-07-5025) …DEFENDANTS JUDGMENT [1] This Judgment concerns the Plaintiff’s summary judgment application (encl. 61) against the 2nd to 6th Defendants 2

the defendant must have entered an appearance;

(ii) the statement of claim must have been served on the defendant; and

(iii) the affidavit in support of the application must comply with the requirements of Rule 2 of the Order 14. ... If the plaintiff fails to satisfy either of these considerations, the summons may be dismissed. If however, these considerations are satisfied, the plaintiff will have established a prima facie case and he becomes entitled to judgment. The burden then shifts to the defendant to satisfy the Court why judgment should not be given against him.” [32] If the Plaintiff satisfies these preliminary requirements the burden is firmly on the 2nd to 6th Defendants to show that there is a triable issue that does not justify summary 14 judgment to be entered against them. If the 2nd to 6th Defendants can demonstrate even one triable issue, this court will not grant summary judgment. But it has to be a genuinely triable issue as would require a trial in order to determine it (see Voo Min En & Ors v. Leong Chung Fatt [1982] 2 MLJ 241). Triable Issues [33] From the submissions filed by the 2nd to 6th Defendants, I have identified the following issues raised by them for the court’s consideration as triable issues: a) The Corporate Guarantee 1, Corporate Guarantee 2, Personal Guarantee 1 and Personal Guarantee 2 are guarantees and not indemnities which create a secondary or accessory liability which is conditional upon the 1st Defendant’s default, the liability of which is not yet determined in arbitration proceedings; b) There is a contradiction in respect of the Plaintiff’s averment relating to Corporate Guarantee 2 exhibited by the Plaintiff in its affidavit in support where the date of Corporate Guarantee 2 is stated as 19.11.2015 but Corporate Agreement 2 as exhibited in Exhibit LSK-3 is dated 25.12.2014; 15 c) The 2nd to 6th Defendants’ obligations under Personal Guarantee 1, Personal Guarantee 2, Corporate Guarantee 1 and Corporate Guarantee 2 have not arisen as the Plaintiff did not exhibit any demand letter; d) There are errors in the invoices exhibited by the Plaintiff to support the amount claimed by the Plaintiff in this application; and e) The amount alleged to be outstanding by the 1st Defendant is disputed by the 1st Defendant as the 2nd to 6th Defendants have a counterclaim against the Plaintiff. Prima facie case [34] Counsel for the 2nd to 6th Defendants argued that the Plaintiff has failed to establish a prima facie case which entitles the Plaintiff file a summary judgment application because the Plaintiff has not proven that the 1st Defendant has defaulted in its obligation since the 1st Defendant is not a party to this suit and the dispute between the 1st Defendant and the Plaintiff is still pending before arbitration. Further, there are errors in the Plaintiff’s references to the documents in para.s 14 and 15 of the Plaintiff’s affidavit in support. According to the 2nd to 6th Defendants the Plaintiff also failed to prove that demands have been made to the 16 2nd Defendant to 6th Defendants since no letters of demand were exhibited by the Plaintiff in this application. [35] Then in the 2nd to 6th Defendants’ Reply Submissions they submitted that the Plaintiff has not proven its case prima facie against the 2nd to 6th Defendants as guarantors as there are errors in the invoices exhibited. Counsel for the 2nd to 6th Defendants went on to point out particular figures in the invoices which the 2nd to 6th Defendants say are conflicting, unsupported, overlapping or erroneous in calculation. [36] The 2nd to 6th Defendants argued that the Plaintiff has not satisfactorily fulfilled the preliminary requirements of O. ROC. [37] First, it has to be noted that the reasons put forward by the 2nd to 6th Defendants saying that the Plaintiff has not proved its prima facie case are in respect of the first 4 issues that I have framed above as possible issues to be tried. I will return to the merits of these issues later. [38] For the moment, I reject the submission by the 2nd to 6th Defendants that the Plaintiff has failed to establish a prima facie case. The Plaintiff has satisfactorily fulfilled the preliminary requirements of O. 14 ROC 2012. 17 [39] Following the principles stated in National Company For Foreign Trade v. Kayu Raya Sdn Bhd [supra], which I have referred to above the Plaintiff has satisfied these preliminary requirements as follows: a) The Statement of Claim was served on the Defendants on 24.6.2020 by way of A.R. Registered Post; b) The 2nd to 6th Defendants have entered appearance on 6.7.2020; and c) The Notice of Application and the affidavit in support of this Application are in compliance with O. 14 r. 2 of the ROC 2012. [40] These issues as raised by the 2nd to 6th Defendants in submitting that the Plaintiff have not established a prima facie case are misplaced. These should be raised as triable issues instead. [41] As the Plaintiff has satisfied the court that it has a prima facie case, the burden is now on the 2nd to 6th Defendants to show that there is a triable issue that does not justify summary judgment to be entered against them. Notwithstanding, I shall consider whether the issues raised by the 2nd to 6th Defendants are triable issues which would require a trial in order to determine them. 18 Guarantee or Indemnity [42] The 2nd to 6th Defendants submitted that from a reading of the Corporate Guarantee 1, Corporate Guarantee 2, Personal Guarantee 1 and Personal Guarantee 2 (“the Guarantee Agreements”), it can be seen that the Guarantee Agreements are guarantees and not indemnities. The 2nd to 6th Defendants say that the Guarantee Agreements are guarantee contracts that create a secondary or accessory liability which is conditional upon the debtor’s default, relying on the case of Huat Hing Rubberwood Sdn Bhd v. Goodnite Sdn Bhd & Ors [2018] 1 LNS 1770 (High Court). [43] Counsel for the 2nd to 6th Defendants further referred the court to section 79 of the Contracts Act 1950 which provides: “79 “Contract of guarantee”, “Surety”, “principal debtor”, and “creditor” A “contract of guarantee” is a contract to perform the promise, or discharge the liability, of a third person in case of his default. The person who gives the guarantee is called the “surety”; the person in respect of which default the guarantee is given is called the “principal debtor”, and the person to whom the guarantee is given is called the “creditor”. A guarantee may be either oral or written.” [44] The 2nd to 6th Defendants went on to argue that even if the Guarantee Agreements use the word “indemnity” that in itself is not enough to turn what is in essence a guarantee 19 into an indemnity and turned again to the Huat Hing case and also referred the court to the cases of Western Credit Ltd v. Alberry [1964] 1 WLR 945 (English Court of Appeal), Re Taylor; Ex Parte Century 21 Real Estate Corporation [1995] 130 ALR 723 (Federal Court of Australia), RMarine Engineering (M) Sdn Bhd v. Bank Islam Malaysia Berhad [2013] 1 LNS 318 (Court of Appeal), Malayan Banking Berhad v. Bumisetia Development Sdn Bhd & 2 Ors [2009] 1 LNS 1282 (High Court) and Hong Leong Finance Berhad v. Thamilchelevan s/o Palinesamy & Anor [1996] 1 CLJ 471 (High Court). [45] The 2nd to 6th Defendants maintained that for the Plaintiff to establish its claim, it must first prove that principal debtor who has the primary obligation, had defaulted, giving rise to the secondary obligation of the sureties. [46] In the case of the 2nd Defendant, the Plaintiff is claiming under Corporate Guarantee 1 and Corporate Guarantee 2. The 2nd to 6th Defendants submitted that in cl. 1, the 2nd Defendant guarantees the performance of the 1st Defendant under the Memorandum of Agreement as well as Charter 1 and Charter 2 (“the Charters”) as cl. 1 of these guarantees provides: "... we, the undersigned, TIME MARINE SERVICES SDN BHD ... hereby irrevocably and unconditionally agree, undertake with and guarantee to you, the Seller, as a continuing obligation that:- 20 a) the Buyer shall perform all the obligations set out in the MOA to purchase the Vessel and to pay to you the balance purchase price of United States Dollar Ten Million Three Hundred and Eighty Thousand (USD10,380,000.00) upon the expiration of the Barecon; b) the Buyer shall perform all the obligations and comply with the terms and conditions set out in the Barecon; c) all costs charges and expenses which the Seller may incur in enforcing or seeking to enforce any of its rights against the Buyer or obtaining or seeking to obtain payment of all or any part of the money or amounts hereby guaranteed;..." [47] The 2nd to 6th Defendants then referred the court to cl. 2 of Corporate Guarantee 1 and Corporate Guarantee 2 which provides: “As a separate, additional and continuing obligation, we hereby unconditionally and irrevocably undertake with you, the Seller, that if for any reason the Buyer does not perform the obligations in the MOA and the Barecon by not making such payment as per the MOA and the Barecon and/or fails to observe and perform any of the applicable terms, covenants, conditions, stipulations, undertakings contained in the MOA and the Barecon, we shalI, as a sole, original and independent debtor, forthwith upon demand by the Seller, pay to the Seller by way of a full indemnity, all the outstanding amount (or any part thereof as may from time to time be demanded by the Seller) and shall Indemnify and keep the Seller fully indemnified against all claims, demands, actions, proceedings, losses, damages, costs and expenses (including legal fees and expenses on a full indemnity basis) which the Seller may Incur or suffer or sustain by reason of or as a result of or in connection with or arising from the Seller entering into the MOA and the Barecon or otherwise in relation to or arising out of or in consequence of or resulting from any fallure by the Buyer for any reason whatsoever to pay the Guaranteed Sum and/or to perform and 21 comply with any of the Buyer's obligations under or in relation to the MOA and the Barecon respectively.” (Emphasis added) [48] The 2nd to 6th Defendants submitted that although cl. seems to provide an indemnity to the Plaintiff by establishing a separate liability on the 2nd Defendant, this clause is in essence, is still a guarantee and not an indemnity as the “separate, additional and continuing obligation” which the 2nd Defendant “unconditionally and irrevocably undertake” with the Plaintiff is contingent upon “if for any reason the Buyer does not perform the obligations in the MOA and the Barecon by not making such payment as per the MOA and the Barecon and/ or fails to observe and perform any of the applicable terms, covenants, conditions, stipulations, undertakings contained in the MOA and the Barecon”. Therefore, the Plaintiff must first establish the fact that the 1st Defendant had not performed the obligations in the Memorandum of Agreement and the Charters. [49] The 2nd to 6th Defendants maintained that since the 1st Defendant is not a party to this suit, as the dispute between the 1st Defendant and the Plaintiff is pending before the arbitration, it cannot be said that the Plaintiff has established the fact of the 1st Defendant’s default and consequently the liability against the 2nd Defendant. 22 [50] In the case of the 3rd to the 6th Defendants, it was similarly argued that in Personal Guarantee 1 and Personal Guarantee 2 which the Plaintiff bases its claim against the 3rd to 6th Defendants on, the words “Personal Guarantee” used as the heading as well as the words “irrevocably and unconditionally guarantee to the Owner and undertake upon demand being made to any of us by the Owner to pay” used in the preamble show that it is the intention of the parties to enter into a guarantee agreement. [51] After examining the 2nd to 6th Defendants’ affidavit in reply I find these submissions unacceptable. The issue of whether the Guarantee Agreements are guarantees or indemnities were not specifically raised by the 2nd to 6th Defendants in their affidavit in reply. There were some general averments couched as possible issues to be tried by the 2nd to 6th Defendants in para.s 27(i) and (ii) of the 2nd to 6th Defendants’ affidavit in reply but to me these do not identify the specific issue of whether the Guarantee Agreements are guarantees or indemnities. It was stated: “Merujuk kepada perenggan 45, setelah dinasihati oleh penguamcara yang mana ianya dipercayai, Defendan Kedua sehingga Defendan Ke-enam menegaskan bahawa penghakiman terus tidak sesuai untuk dimasukkan terhadap Defendan Kedua sehingga Defendan Ke-enam oleh kerana terdapat isu-isu yang perlu untuk dibicarakan, antara lainnya seperti berikut:- “(i) Samada terdapat liabiliti keberhutangan ke atas Defendan Kedua sehingga Defendan Ke-enam di bawah Jaminan Korporat I, Jaminan Korporat II, Jaminan Peribadi I dan Jaminan Peribadi II 23 sedangkan Plaintif tidak membuktikan keberhutangan Defendan Pertama di bawah Perjanjian Memorandum tersebut?

(ii) Samada liabiliti keberhutangan ke atas Defendan Kedua bawah jaminan-jaminan sehingga Defendan Ke-enam tersebut telah terakru?” [52] That being the case, I would regard the 2nd to 6th Defendants’ submission that the Guarantee Agreements are guarantee contracts and not an indemnity contracts are submissions from the bar which were not raised in the affidavit and the Defence and are to be disregarded. See Ribaru Bina Sdn Bhd & Anor v. Bakti Kausar Development Sdn Bhd & Anor [2007] 1 CLJ 552; Export-Import Bank Of Malaysia Berhad v. PR Builders Sdn Bhd & Ors [2021] 1 LNS 321; Ambank Islamic Berhad v. Sungei Wang Plaza Sdn Bhd & Ors [2020] 1 LNS 1881. [53] Even if these submissions are to be considered, the 2nd to 6th Defendants have not sufficiently shown from affidavit evidence and in their submissions why the Guarantee Agreements are guarantees and not indemnities. All counsel for the 2nd to 6th Defendants did was to cite a number of authorities on the principles of law on the differences between a guarantee and indemnity but nothing was averred to in the 2nd to 6th Defendants’ affidavit in reply on the characteristics of the Guarantee Agreements which make them guarantees. 24 [54] The only reference to the actual words in the Guarantee Agreements were in the 2nd to 6th Defendants’ Written Submission that the words “guarantee to you” in the Guarantee Agreements make the Guarantee Agreements guarantees. This was only raised in submissions and not even in the affidavits. In any event, in my view the words “guarantee to you” do not make the Guarantee Agreements guarantees as there are other words in the agreement which denote that the Guarantee Agreements are indemnities. Specifically cl. 1 of Personal Guarantee 1, cl. of Personal Guarantee 2, cl. 2 of Corporate Guarantee 1 and cl. 2 of Corporate Guarantee 2 provide that the 2nd to the 6th Defendants have undertaken an independent obligation to pay the guaranteed sum stated therein. This was specifically averred by the Plaintiff in para. 41 of the Plaintiff’s’ affidavit in reply. Clause 2 of Corporate Guarantee 1 and cl. 2 of Corporate Guarantee 2 have been reproduced above. I reproduce cl. 1 of Personal Guarantee 1 and cl. 1 of Personal Guarantee 2 which are identical as below: “As a separate, additional and continuing obligation, /we HEREBY UNCONDITIONALLY AND IRREVOCABLY undertakes with the Seller that ' or any reason the Guaranteed Sum is not recoverable from the Buyer or Time Rina or the Buyer or Time Rina does not make such repayment or payment of the Guaranteed Sum and or fails to observe and perform any of the applicable terms, covenants, conditions, stipulations, undertakings contained in the Finance Documents or the MOA, I/we shall as a sole, original and independent debtor, forthwith upon demand by the Seller, pay to the Seller by way of a full indemnity, the Guaranteed Sum (or any part 25 thereof as may from time to time be demanded by the Seller) and shall indemnify and keep the Seller fully indemnified against all claims, demands, actions, proceedings, losses, damages, costs and expenses (including legal fees and expenses on a full indemnity basis) which the Seller may incur or suffer or sustain by reason of or as a result of or in connection with or arising from the Seller entering into the Finance Documents or the MOA or otherwise in relation to or arising out of or in consequence of or resulting from any failure by the Buyer or Time Rina for any reason whatsoever to pay the Guaranteed Sum and or to perform and comply with any of the Buyer's or Time Rina's obligations under or in relation to the Finance Documents or the MOA.” (Emphasis added) [55] Clauses 1, 4, and 9 of Personal Guarantee 1, cl.s 1, 4 and 9 of Personal Guarantee 2, cl.s 2 and 9 of Corporate Guarantee 1 and cl.s 2 and 9 of Corporate Guarantee 2 also provide that the 2nd to 6th Defendants have undertaken their respective obligations as independent debtors. [56] Clause 4 of Personal Guarantee 1 and Personal Guarantee 2: “The Owner shall have the right to exercise all or any of the remedies available whether by this Guarantee or by statute or otherwise and sha be entitled to exercise such remedies concurrently, including pursuing all remedies pursuant to this Guarantee and civil suit against the Buyer to recover all moneys due and owing to the Owner, AND I/we hereby irrevocably and unconditionally agree and consent to the Owner commencing separate proceedings, enforcing other remedies and exercising any other rights which the Owner may have against me/us, or 26 any other security party simultaneously or consecutively in any order as the Owner deems fit.” [57] Clause 9 of Personal Guarantee 1 and Personal Guarantee 2: “As a separate and independent stipulation, I/we agree that any sum or sums of money which may not be recoverable from me/us on the footing of a guarantee whether by reason of any legal limitation disability or incapacity on or of the Buyer and/or the Buyer or by any other fact or circumstances and whether known to the Seller/Owner or not shall nevertheless be recoverable from me/us as šole or principal debtor and shall be paid by me/us immediately on demand.” [58] Clause 9 of Corporate Guarantee 1 and cl. 9 of Corporate Guarantee 2: “You shall have the right to exercise all or any of the remedies available whether by this Guarantee or by statute or otherwise and shall be entitled to exerdise such remedies concurrently, including pursuing all remedies pursuant to this Guarantee and civil suit against us to recover all moneys due and owing to you, and we hereby irrevocably and unconditionally agree and consent to you commencing separate proceedings, enforcing other remedies and exercising any other rights which you may have against us, or any other security party simultaneously or consecutively in any order as you deem fit.” [59] Also, by virtue of these clauses in the Guarantee Agreements, the Plaintiff is entitled to exercise all or any of the remedies available, to commence separate proceedings, to enforce other remedies, to exercise any other right which the Plaintiff may have against them simultaneously or consecutively in any order as the Plaintiff 27 deems fit. See the judgment of this court in Small Medium Enterprise Development Bank Malaysia Berhad v. Armada TPCE Sdn Bhd & Ors [2021] 11 MLJ 273 (in para.s 54 to 59). Mistaken references to documents [60] The 2nd to 6th Defendants submitted that there is also a triable issue as there is a contradiction in respect of the Plaintiff’s averment relating to Corporate Guarantee 2 exhibited by the Plaintiff in its affidavit in support. In para. of the Plaintiff’s affidavit in support the Plaintiff stated: “Defendan Kedua merupakan sebuah syarikat yang telah bersetuju untuk menjadi penjamin kepada Defendan Pertama melalui satu Jaminan Korporat (Corporate Guarantee) bertarikh 25.12.2014 (selanjutnya dirujuk sebagai “Jaminan Korporat 1”) dan satu Jaminan Korporat bertarikh 19.11.2015 (selanjutnya dirujuk sebagai “Jaminan Korporat 2”). Sesalinan Jaminan Korporat 1 dilampirkan di sini dan ditandakan sebagai ekshibit “LSK-1” dan sesalinan Jaminan Korporat 2 dilampirkan di sini dan ditandakan sebagai ekshibit “LSK-2”. [61] Counsel for the 2nd to 6th Defendants pointed out to the court that the Plaintiff stated that the date of Corporate Guarantee 2 is stated as 19.11.2015 in para. 14 but Corporate Agreement 2 as exhibited in Exhibit LSK-3 (which was stated as Exhibit LSK- 2) is also dated 25.12.2014, the same date as Corporate Guarantee 1. The 2nd to 6th Defendants argue that it cannot be ascertained whether Corporate Guarantee 2 is indeed the agreement exhibited 28 as Exhibit LSK-3 as it contradicts the Plaintiff’s own averment. [62] I do not accept this as a triable issue. In the 2nd to 6th Defendants’ affidavit in reply at para.s 9(vi) and (vi) they referred to this error but do not raise this as a triable issue and merely corrected the Plaintiff’s averments. Additionally the Plaintiff in para. 7 of the Plaintiff’s affidavit in reply has corrected the mistake. Demand [63] The 2nd to 6th Defendants submitted that their obligations under cl. 1 of Personal Guarantee 1 and Personal Guarantee 2 and cl. 2 of Corporate Guarantee 1 and Corporate Guarantee 2 only arise upon demand by the Plaintiff, thus as the Plaintiff did not exhibit any demand letter, the Plaintiff has not proven the amount demanded. [64] I do not accept this submission as the 2nd to 6th Defendants are raising a new issue of there being no demand in their Written Submissions which have not been pleaded and the 2nd to 6th Defendants also did not raise raise this as an issue in the 2nd to 6th Defendants’ affidavit in reply. See Ribaru Bina Sdn Bhd & Anor v. Bakti Kausar Development Sdn Bhd & Anor [supra]; Export-Import Bank Of Malaysia Berhad v. PR Builders Sdn Bhd & Ors [supra]; Ambank Islamic Berhad v. Sungei Wang Plaza Sdn Bhd & Ors [supra]. 29 [65] Further, the 2nd to 6th Defendants have admitted the existence of the Plaintiff’s demand in para. 21 of their Amended Statement of Defence and Amended Counterclaim in response to the Plaintiff’s pleading in para. 38 of the Amended Statement of Claim that letters of demand dated 1.6.2020 were issued by the Plaintiff’s solicitors to demand for the amount of USD2,569,652.67 from the 2nd to 6th Defendants. The issue of a defective demand was raised by the 2nd to 6th Defendants in their Defence thus it is for 2nd to 6th Defendants to exhibit the letters of demand and state why the letter of demand is defective. [66] The Plaintiff submitted, and I accept, that a letter of demand is not a compulsory requirement to commence an action against the 2nd to the 6th Defendants as the liability of the 2nd to the 6th Defendants as a principal debtor is provided in cl.s 1, 4 and 9 of Personal Guarantee 1, cl.s 1, 4 and 9 of Personal Guarantee 2, cl.s 2 and 9 of Corporate Guarantee 1 and cl.s 2 and 9 of Corporate Guarantee 2. This position is clearly stated in Public Bank Bhd v. Chan Siok Lie & Ors [1989] 2 MLJ 305 where the High Court held: “... even though the amounts under the guarantee are expressed to be payable 'on demand', the inclusion of a ’principal debtor' clause in the body of a guarantee may obviate the necessity for the creditor to make a demand. ... the effect of a guarantee agreement is to make the guarantors principal debtors, the necessity for a demand could be obviated because the character of 30 the agreement under which payment is sought is no longer strictly collateral.” [67] I thus find the issue raised by the 2nd to 6th Defendants on the point of service of demands to be without merit. Errors in invoices [68] I reject the 2nd to 6th Defendants’ submissions that errors in the invoices would constitute a triable issue. In the 2nd to 6th Defendants’ affidavit in reply it was averred that the amount claimed by the Plaintiff was disputed but nothing was said about the errors in the invoices. Quite apart from these alleged errors being raised very late in the day these were never raised in the affidavit in reply or even the main submissions. These are submissions from the bar which cannot be accepted by the court. The Plaintiff would not have an opportunity to rebut these through affidavit evidence. See Ribaru Bina Sdn Bhd & Anor v. Bakti Kausar Development Sdn Bhd & Anor [supra]; Export-Import Bank Of Malaysia Berhad v. PR Builders Sdn Bhd & Ors [supra]; Ambank Islamic Berhad v. Sungei Wang Plaza Sdn Bhd & Ors [supra]. Counterclaim [69] The 2nd to 6th Defendants submitted that the amount alleged to be outstanding by the 1st Defendant is actually disputed by the 1st Defendant as the 2nd to 6th Defendants have a counterclaim against the Plaintiff. This consists of an 31 amount claimed by the Plaintiff which did not take into consideration the payments made by the 1st Defendant in the form of deposits amounting to USD1,820,000.00 and USD1,325,000.00 for other payments together with retrofit works done by the 1st Defendant on the Vessel costing RM2,017,339.28 which the Plaintiff benefitted from and is entitled to a set-off. [70] Further, the 2nd to 6th Defendants submitted that as the liability of the 2nd Defendant to the 6th Defendant is contingent upon the extent of default and liability of the 1st Defendant and the 2nd to 6th Defendants’ counterclaim still remains as part of the pleaded case of the 2nd to 6th Defendants, the set-offs must still be ventilated in a full trial. [71] The 2nd to 6th Defendants also referred the court to O. 14 r. 3(2) ROC 2012 which provides that the court may order the stay of any execution of any summary judgment pending the trial of any counterclaim made or raised. [72] I do not accept the existence of this counterclaim as a triable issue. The counterclaim by the 2nd to 6th Defendants is a separate claim from the Plaintiff’s claim and it does not absolve the 2nd to 6th Defendants from their indebtedness and liability to pay the outstanding amount due and owing to the Plaintiff. 32 [73] As for the payments made by the 1st Defendant to the Plaintiff, the payments made by the 1st Defendant are not related to the Plaintiff’s claim. The Plaintiff submitted, and I agree, payment of USD1,220,000.00 paid to the Plaintiff is the deposit pertaining to the purchase of the Vessel which the Plaintiff is entitled to forfeit. For the other payments, no explanation was given in the 2nd to 6th Defendants’ affidavit in reply and the 2nd to 6th Defendants’ Written Submissions as to what they are for. [74] As for the retrofit work carried out on the Vessel, the 2nd to 6th Defendants did not show that any approval was obtained from the Plaintiff to carry out the retrofit work. The emails exhibited by the 2nd to 6th Defendants do not show that any approval has been obtained. Further the retrofit work is irrelevant to the Plaintiff’s claim for outstanding amounts. [75] O. 14 r. 3(2) ROC 2012 which provides that the court may order the stay of any execution of any summary judgment pending the trial of a counterclaim is not relevant in this application. It may be considered by the court in a stay of execution application by the 2nd to 6th Defendants, but not at this stage. Conclusion [76] Considering the totality of the facts and circumstances of the case as disclosed in the affidavit evidence, it was quite 33 clear to me that the Plaintiff had clearly met the preliminary requirements in an O. 14 application in accordance with the principles established by National Company For Foreign Trade v. Kayu Raya Sdn Bhd [supra] and further, applying the leading Supreme Court case of Bank Negara Malaysia v. Mohd Ismail Ali Johor & Ors [1992] 1 CLJ 627. Accordingly I held that the contentions of the 2nd to 6th Defendants do not amount to triable issues or constitute any reasonable defence. [77] Accordingly, I allow the Plaintiff’s application in encl. 61 with costs of RM3,000.00. Dated: 1 November 2021 ATAN MUSTAFFA YUSSOF AHMAD Judicial Commissioner Kuala Lumpur High Court (Commercial Division) Counsel: For the Plaintiff: Tan Tzai Mun (Messrs Tzai Mun & Co.) For the 2nd to 6th Defendants: Mohd Munzeer bin Zainul Abidin & Sasha Ahmad Naspu (Messrs Janariah Zuraini & Co.)