Yong Kok Yeap v Uruswajar Concrete Sdn Bhd (BA-12B-35-04/2025)

YONG KOK YEAP [NO K/P: 641029-10-7195]

FANG CHEE PENG [NO K/P: 630617-01-5728] … PERAYU-PERAYU DAN URUSWAJAR CONCRETE SDN BHD [NO SYARIKAT: 199901018806 (493706-V)] … RESPONDEN (Dalam Perkara Mahkamah Sesyen di Kajang Dalam Negeri Selangor Darul Ehsan, Malaysia Guaman No BH-B52-5 05/2023 Antara Uruswajar Concrete Sdn Bhd [No Syarikat: 199901018806 (493706-V)] … Plaintif

Dan Yong Kok Yeap [No K/P: 641029-10-7195]

Fang Chee Peng [No K/P: 630617-01-5728] … Defendan-Defendan) GROUNDS OF JUDGMENT Introduction [1] In this judgment, the parties shall be referred to as if they were in the Sessions Court. [2] This is an appeal by the first defendant (“the First Defendant”) and the second defendant (“the 2nd Defendant”) against the decision of the learned Sessions Court Judge (“the SCJ”) on 29.4.2025 (after full trial) to allow the Plaintiff’s claim. [3] After perusal of the cause papers and after hearing submissions from the counsels, I have decided to dismiss the Defendants’ appeal with costs based on the reasonings which I shall explain hereafter. Background facts [4] The 1st Defendant and the 2nd Defendant are the directors of MKP Builders Sdn Bhd (“MKP Builders”). [5] The Plaintiff issued a quotation dated 3.8.2017 (“the Quotation”) to MKP Builders to supply concrete for its elevated highway project (“the Project”). [6] MKP Builders duly accepted the terms of the Quotation. The Plaintiff then forwarded the following documents to MKP Builders for execution: -

application form for credit account (“the Application for

terms and condition of sale – Annexure A (“the Terms &

continuing guarantee and indemnity (“the Continuing

letter of consent for disclosure of credit information (“the Consent for Disclosure”). The Application for Credit Account, the Terms & Condition of Sale, the Continuing Guarantee & Indemnity and the Consent for Disclosure shall be collectively called “the Application Documents”. [7] The Application Documents were duly executed by the Defendants and thereafter returned to the Plaintiffs together with the following: -

Identity cards of the 1st Defendant and the 2nd Defendant;

Form 49 (Register of Directors) of MKP Builders; and

Form 24 (Allotment of Shares) of MKP Builders. [8] The Continuing Guarantee & Indemnity was thereafter dated on 25.8.2017 and duly stamped on 4.10.2017. [9] Upon completion of all the documentation and pursuant to the purchase orders made by MKP Builders, the Plaintiff delivered concrete to MKP Builders. The concrete was delivered to the site of the Project. [10] Pursuant to the delivery of the concrete, MKP Builders owe the Plaintiff the sum of RM 561,471.40 (“the Outstanding Sum”). [11] However, MKP Builders has wound up on 9.2.2022. [12] The Plaintiff is now claiming the Outstanding Sum against the 1st Defendant and the 2nd Defendant pursuant to the Continuing Guarantee & Indemnity. [13] However, the Defendants said that they have signed the Continuing Guarantee & Indemnity in respect of the application for credit account for a different company, Element Flash (M) Sdn Bhd (“Element Flash”). The Defendants argued that they did not agree to sign any document to guarantee the obligations of MKP Builders. [14] The Defendants explained that when they signed the Continuing Guarantee & Indemnity, they had also added their initialized signatures into all the pages of the document. In addition, the Defendants had also written the words “Element Flash (M) Sdn Bhd” in the Continuing Guarantee & Indemnity. This is to indicate the company which they had agreed to guarantee for. [15] The Defendants also argued that the Plaintiff cannot take any action against them yet. Instead, the Plaintiff should commence legal action against MKP Builders in order to establish the liability of MKP Builders. [16] The Defendants also stated that since MKP Builders has already been wound up, the Plaintiff would have to seek leave from the Court pursuant to Section 471 of the Companies Act 2016. Summary of the decision by the SCJ [17] During the trial in the Sessions Court, the 1st Defendant gave evidence that they had signed the Continuing Guarantee & Indemnity for Element Flash, and not MKP Builders. The 1st Defendant also said that both the 1st Defendant and the 2nd Defendant had added their initialized signatures into all the pages of the document and had written the words “Element Flash (M) Sdn Bhd”. [18] On the other hand, the Plaintiff’s officer (“SP2”) gave evidence that when the Continuing Guarantee & Indemnity was returned, the first paragraph at page 1 and the date at page 4 were left blank. SP2 then used the typewriter to type the name and address of MKP Builders into the space provided in the first paragraph at page 1. SP2 also stamped the date “25.8.2017” at space provided at page 4. [19] The original copy of the Continuing Guarantee & Indemnity was then produced before the SCJ. The SCJ then inspected the original Continuing Guarantee & Indemnity and found that there were no initialized signatures of the Defendants. The words “Element Flash (M) Sdn Bhd” was also not stated in it. This is contrary to what the Defendants are asserting. [20] The SCJ also accepted the explanation by SP2 and found that the insertion of the name and address of MKP Builders was merely an administrative process. The insertion of the particulars does not amount to manipulation and does not affect the validity of the Continuing Guarantee & Indemnity. [21] The SCJ also found that there are no reasons for the Defendants to sign the Continuing Guarantee & Indemnity on behalf of Element Flash as there is actually no business transaction between the Plaintiff and Element Flash. [22] The SCJ also said that there is no requirement for the Plaintiff to seek leave from the Court pursuant to Section 471 of the Companies Act 2016 as the Plaintiff is taking action against the Defendants in their personal capacity pursuant to the Continuing Guarantee & Indemnity. [23] The SCJ also found that the Continuing Guarantee & Indemnity is a continuing guarantee as opposed to a specific guarantee. [24] The SCJ also found that it is clear that the business account has been opened for MKP Builders. The Application Documents that have been submitted are all related to MKP Builders. All of the invoices, statements and correspondences that has been issued by the Plaintiff were addressed to MKP Builders. Therefore, the Defendants cannot plead ignorance and argue otherwise. [25] The SCH also found that the Defendants did not make any objections when the concrete was delivered to MKP Builders. Similarly, the Defendants did not make any objections when the statement of accounts and demands were issued. As such, the SCJ agreed that estoppel would apply as there was never any proactive steps taken by the Defendants to object or deny the transactions. Summary of the Defendants’ case (in supporting the appeal) [26] The Defendants submit that the SCJ has made the wrong decision by ignoring the fact that the Defendants had signed the Continuing Guarantee & Indemnity for Element Flash, and not MKP Builders. [27] The Defendants state that they were not signing on behalf of MKP Builders as the particulars of the Continuing Guarantee & Indemnity were left blank. It was SP2 who had typed the name and address of MKP Builders into the empty space provided at the first paragraph of page 1. [28] The Defendants also state that the stamped copy of the Continuing Guarantee & Indemnity was never forwarded to the Defendants. [29] The Defendants also argue that the Plaintiff is not allowed to take action against them yet. Instead, the Plaintiff should commence legal action against MKP Builders in order to establish the liability of MKP Builders. [30] The Defendants also argue that since MKP Builders has already been wound up, the Plaintiff’s demand contravenes Section 471 of the Companies Act 2016. [31] The Defendants also argue that the purchase orders made by MKP Builders were too general in nature and that the Plaintiffs had failed to prove that MKP Builders have actually ordered the concrete. [32] The Defendants also state that Clause 10 of the Terms & Condition of Sale provides that title / ownership to the goods remains with the Plaintiff. Therefore, the Defendants argue that the Plaintiff’s action is premature. Summary of the Plaintiff’s case (in opposing the appeal) [33] The Plaintiff argues that it is clear that the Defendants had signed the Continuing Guarantee & Indemnity on behalf of MKP Builders. The Application Documents were forwarded to MKP Builders. The Application Documents were then signed and returned to the Plaintiffs together with the Form 49 and Form 24 of MKP Builders. [34] The Plaintiff also states that although the stamped copy of the Continuing Guarantee & Indemnity was never forwarded to the Defendants, there was no legal requirement to do so. [35] The Plaintiff also points out that they have no business dealings with Element Flash at all. There were no purchase orders by Element Flash and no goods were delivered to Element Flash. Therefore, there is no basis for the Defendants to sign a guarantee on behalf of Element Flash. [36] The Plaintiff also states that they are not legally bound to file a claim against MKP Builders. This is an action against the Defendants in their personal capacity pursuant to the Continuing Guarantee & Indemnity. MKP Builders have already wound up and the Plaintiff has already lodged the proof of debt. [37] The Plaintiff points out the following clauses in the Continuing

Clause 1: - The Defendants must pay all sums due and owing by MKP Builders;

Clause 13: - It is a continuing guarantee for all moneys owing by MKP Builders;

Clause 14: - The Defendants’ liability remains regardless of the Plaintiff’s rights against MKP Builders and whether the Plaintiff has availed of legal remedies against MKP

Clause 17: - The Defendants shall be deemed as principal debtors. [38] Lastly, the Plaintiff argues that the issue of title or ownership to the goods was never pleaded in the Defendants’ defence and it was not part of the agreed issues in the proceedings in the Sessions Court. Findings by the Court [39] I do not accept the Defendants’ assertion that they had added their initialized signatures into all the pages of the Continuing Guarantee & Indemnity and had written the words “Element Flash (M) Sdn Bhd”. [40] The original copy of the Continuing Guarantee & Indemnity was produced during the trial. The SCJ had already inspected it and found that there were no initialized signatures of the Defendants. The words “Element Flash (M) Sdn Bhd” was also not stated in it. [41] The original copy of the Continuing Guarantee & Indemnity was the only document that was adduced in the trial. There was no other document that was adduced by the Defendants to support their contention. [42] As such, I find that the SCJ have made the correct decision, as captured in paragraphs (26), (28) and (29) in the SCJ’s grounds of judgment (“the GOJ”) as follows: - “[26] Bahkan, penelitian mahkamah mendapati defendan-defendan telah gagal untuk mengemukakan kepada Mahkamah ini jaminan Element Flash yang didakwa tersebut untuk diperiksa oleh Mahkamah. …. [28] Oleh itu, hanya satu jaminan sahaja yang dikemukakan dihadapan mahkamah ini yang telah ditandatangani oleh defendan-defendan sebagai penjamin bagi pihak MKPB, iaitu P1. [29] Dapatan mahkamah mendapati Jaminan Element Flash yang didakwa oleh Defendan-defendan telah direka atau dicipta sebagai satu usaha untuk mengelak daripada tanggungjawab.” [43] I also find the Defendants’ argument not plausible, given the fact that the Application Documents were executed and returned to the Plaintiff together with the Form 49 and Form 24 of MKP Builders. It was not the Form 49 and Form 24 of Element Flash. Therefore, it is hard for me to accept that the documents were being executed on behalf of Element Flash. [44] As correctly pointed out by the Plaintiff, there would be no basis for the Defendants to sign a guarantee on behalf of Element Flash as the Plaintiff has no business dealings with Element Flash. It must be noted that: -

There was no quotation issued from the Plaintiff to

Element Flash did not fill up any credit application form to apply for credit for the supply of goods by the Plaintiff;

There were no purchase orders issued by Element Flash to the Plaintiff;

There were no delivery orders issued by the Plaintiff to

There were no invoices issued by the Plaintiff to Element

There was no statement of accounts issued by the Plaintiff to Element Flash. [45] I also do not accept the argument that the Plaintiff is legally bound to file a claim against MKP Builders in order to establish MKP Builders’ indebtedness prior to the filing of this action against the Defendants. This is because of the existence of the principal debtor clause in the Continuing Guarantee & Indemnity. [46] The Plaintiff is also not required to file an action against MKP Builders because MKP Builders has already been wound up. The Plaintiff has also already lodged its proof of debt. As such, the Plaintiff has exhausted all legal remedies against MKP Builders before commencing the action against the Defendants. [47] The Continuing Guarantee & Indemnity clearly provides that the Defendants shall be deemed to be the principal debtors and the Defendants’ liability to the Plaintiff remains regardless of whether the Plaintiff has any legal rights or claims against MKP Builders. Clause (13), (14) and (17) of the Continuing Guarantee & Indemnity states that: - “(13) This Guarantee and Indemnity shall be a continuing guarantee and security for all monies whatsoever now or hereafter owing to you by the Customer whether alone of jointly and severally with another or others and whether as principal or surety notwithstanding that the Customer may at anytime or times cease to be indebted to you for any period or periods and notwithstanding any settlement of account or accounts or otherwise.

My/Our liabilities hereunder shall subsist whether or not you have a legal right or claim against the Customer and/or any other surety and/or against any security you may now or at any time hereafter or from time to time have from or against the Customer or any other person for any sum, loss or damage and whether or not you have availed yourself of your legal remedies against the Customer and/or any other surety and/or against any security as aforesaid. …..

Though as between me/us and the Customer I/we am/are surety(ies) only for the Customer yet as between you and me/us I/we shall be deemed to be principal debtor(s) for all the monies the payment of which is hereby guaranteed and accordingly I/we shall not be discharged nor shall my/our liability be affected in any way by any fact circumstance act omission or means whatsoever whether known to you or not whereby my/our liabilities hereunder would have been discharged if I/we had not been principal debtor(s).” [48] In Andrew Lee Siew Ling v United Overseas Bank (M) Bhd [2013] 1 MLJ 449, the Federal Court held that: - “[22] It is our finding that the letter of guarantee and indemnity contained several clauses which clearly show the intention of both guarantors to undertake the liability for the repayment of the term loan and interest therein not merely as sureties but also as a principal debtors as well as indemnifiers. ….. [23] It is our considered view that in the present case the appellant, being a person who has given a guarantee and more importantly an indemnity, is primarily liable for losses which the principal borrower could not have been made liable. His liability is not dependent or secondary to the liability of the principal borrower. He is a principal debtor himself. The liability under a contract of indemnity does not depend on whether the principal debt is enforceable. It has no reference in law to the obligation of any third person. In essence, the liability of the person who has given an indemnity can be more extensive than that of the liability of the principal borrower (see the cases of (1) Yeoman Credit Ltd v Latter & Anor [1961] 2 All ER 294 and (2) Chung Khiaw Bank Ltd v Soi Huan & Ors [1986] 1 MLJ 188).” [49] The Plaintiff’s statement of indebtedness / statement of account (“the Statement of Indebtedness”) was issued in accordance with Clause 3 of the Continuing Guarantee & Indemnity and was attached to the letter of demand dated 5.4.2023 (“the Letter of Demand”). Clause 3 of the Continuing Guarantee & Indemnity states that: - “(3) Any statement of indebtedness in writing signed by any of your authorised officers shall be conclusive proof of the amount of indebtedness of the Customer to you and any judgment recovered by you against the Customer in respect of such indebtedness shall be binding and conclusive on and against me/us or anyone of us or my/our executors, administrators and legal representatives in all Court of law and elsewhere.” [50] In Cempaka Finance Bhd v Ho Lai Ying (trading as KH Trading) & Anor [2006] 2 MLJ 685, the Federal Court held that: - “[11] The above dictum establishes firmly the conclusive nature and extent of a certificate of indebtedness. A certificate of indebtedness operates in the field of adjectival law. It excuses the plaintiff from adducing proof of debt. Such a certificate shifts the burden onto the defendant to disprove the amount claim.” [51] There are also no documents to show that MKP Builders has disputed the delivery of the concrete from the Plaintiff. There is also no evidence to show that MKP Builders has disputed any of the invoices issued by the Plaintiff. [52] I also agree that there is also no requirement for the Plaintiff to seek leave pursuant to Section 471 of the Companies Act 2016 as this action is filed by the Plaintiff against the Defendants only. MKP Builders is not a party in this action. [53] With regards to the Defendants’ argument that the title or ownership to the goods remain with the Plaintiff in accordance with Clause 10 of the Terms & Conditions of Sale, the Plaintiff has already submitted that this issue of title or ownership was never pleaded in the Defendants’ defence. In Mkini Dotcom Sdn Bhd & Ors v Raub Australian Gold Mining Sdn Bhd [2021] 5 MLJ 79, the Federal Court held that: - “[28] The learned trial judge was wrong on the other hand to accept the unpleaded defence of reportage, which was only raised by the appellants in their closing submissions. The learned judge should only have proceeded to consider the pleaded Reynolds defence of responsible journalism or qualified privilege. [29] The law is trite that parties are bound by their pleaded causes of action: see the decision of this court in Giga Engineering & Construction Sdn Bhd v Yip Chee Seng & Sons Sdn Bhd & Anor [2015] 6 MLJ 449 where it was held as follows: [42] Now it is trite law that the plaintiff is bound by its own pleadings (see R Rama Chandran v The Industrial Court of Malaysia & Anor [1997] 1 MLJ 145; Anjalal Anmal & Anor v Abdul Kareem [1969] 1 MLJ 22; Gimstern Corporation (M) Sdn Bhd & Anor v Global Insurance Co Sdn Bhd [1987] 1 MLJ 302 (SC); Joo Chin Kia v Loh Seng Tek [1987] 1 CLJ 194; KEP Mohamed Ali v KEP Mohamad Ismail [1981] 2 MLJ 10 (FC). The Plaintiff is not permitted to improve its pleading in any other manner other than by way of an application to amend. Otherwise it would be unfair and prejudicial to the defendants if the plaintiff could now be allowed to raise an issue that was not within the contemplation of the parties in the first place (see Esso Petroleum Co Ltd v SouthPort Corpn [1956] AC 218; Playing Cards (M) Sdn Bhd v China Mutual Navigation Co Ltd [1980] 2 MLJ 182 (FC).” Conclusion [54] Accordingly, for the reasons above, the Defendants’ appeal is dismissed with costs fixed at RM 10,000.00. Dated the 27th day of February 2026. (SEOW HOCK PENG) JUDICIAL COMMISSIONER HIGH COURT OF MALAYA SHAH ALAM, SELANGOR Counsel: For the Appellants/Defendants : Tang Kim Choong (Messrs K C Tang & Co.) For the Respondent/Plaintiff : Tieh Siaw Siong (Messrs S. S. Tieh) Case Reference:

Andrew Lee Siew Ling v United Overseas Bank (M) Bhd [2013]

Cempaka Finance Bhd v Ho Lai Ying (trading as KH Trading) &

Mkini Dotcom Sdn Bhd & Ors v Raub Australian Gold Mining