Anson Ang v 1. ) Loo Kaisin (WA-24NCC-94-02/2024)

LOO KAISIN (Identity Card No.: 831206-10-5527)

BUSINESS PIXEL SDN. BHD. (Company No.: 201501009352 [1134687-V]) JUDGMENT (Enclosure 11)

The Plaintiff was a former Director of the Second Defendant. The First Defendant is a Director of the Second Defendant.

The Plaintiff took out an Originating Summons seeking declaratory relief against the Defendants relating to a Deed of Agreement and Indemnity dated 30.03.2021 between the Plaintiff and the the Deed

The Plaintiff is also seeking an order of this Court to compel the Defendants, among others, to take all reasonable and necessary steps to set aside a Judgment in Default of Appearance obtained by a 3rd party against the Plaintiff and the Defendants in another suit.

The Defendants took out a notice of application to convert the originating summons to a writ action. The Plaintiff opposed the application.

I dismissed the application. The Defendants appeal. This is my judgment for dismissing the application.

The Plaintiff was a Director of the Second Defendant from 12.02.2019 to 24.05.2023.

Sometime in December 2020, the Second Defendant obtained a financing facility of RM Facility from Malaysia Debt Ventures Sdn. Bhd. MDV Defendant stood as guarantors for the Facility.

The Plaintiff and the Defendants then executed the Deed.

The salient terms of the Deed are as follows: - a)

The Deed also provides for the following terms: In consideration of the [Plaintiff] agreeing to be the Guarantor and as a Director of the Company, the First Defendant in his personal capacity and/or the Company (as the case maybe) hereby irrevocably and unconditionally agree and undertake to each and every one of the following: a) comply punctually with all payment obligations in relation to the Facility: b) to indemnify and keep the [Plaintiff] indemnified at all times and hold the [Plaintiff] harmless from and in respect of all Losses (as defined herein) which may be suffered, sustained or incurred by the [Plaintiff] directly or indirectly as a consequence of, in connection with being a Director of the Company and/or being the

The Plaintiff resigned as a Director of the Second Defendant on 24.05.2023.

On 25.08.2023, MDV filed an action against the Plaintiff and the Defendants to claim a sum of RM 999,693.75 under the Facility MDV Suit default of appearance against the Plaintiff on 30.10.2023.

The Plaintiff says the effect of the terms of the Deed is to cause the removal of the Plaintiff as a guarantor to the Facility. The Deed is also to indemnify and keep the Plaintiff indemnified against position as a Director of the Second Defendant and as a guarantor for the Facility.

The Plaintiff says the Defendants breached the terms of the Deed as notwithstanding the resignation of the Plaintiff as Director of the Second Defendant prior to the commencement of the MDV suit, the Plaintiff was not removed as a guarantor. The Plaintiff now seeks his removal as a guarantor and indemnity from the Defendants, jointly and severally.

Th First Defendant on 19.12.2023, demanding that the payments due to MDV be settled and the Defendants take steps to remove the Plaintiff as a guarantor to the Facility.

The First Defendant admits signing the Deed. However, the First Defendant says subsequent agreements and events had resulted in the Deed becoming non-binding and/or terminated.

Rules of Court 2012 and/or the inherent jurisdiction of this Honourable Court for an order that this suit begun by originating summons be continued as if it had been begun by writ and consequential reliefs should the main relief be granted.

The Defendants submit that there are fundamental and substantial disputes of facts and complex legal issues that require the calling of witnesses and a full trial.

the Deed, had been signed by the Defendants in April 2021. stamped.

The Defendants dispute that the Deed was signed since April 2021 as it was never returned to the Defendants.

The Defendants also intend to call witnesses to prove that subsequent agreements and events have resulted in the Deed being non-binding and/or terminated.

The Plaintiff objects to the application on the basis that the Deed is a simple and straightforward document. The Plaintiff is only seeking declaratory reliefs which involves the interpretation of the terms of the Deed which is to be based on the four corners of the Deed. The precise reliefs sought by the Plaintiff are as follows: a) An Order pursuant to Clause 3(e) of the Deed of Agreement & Indemnity between the Plaintiff and the Defendants dated 30.03.2021 ("Deed of Indemnity") to compel the Defendants to take all reasonable and necessary steps forthwith to "...cause the removal of the Indemnitee [Plaintiff] as the Guarantor of the Facility..."', namely, an "Technology Startups Funding Relief Facility" with the sum of RM 1,000,000.00 ("MDV Facility"), granted by Malaysia Debt Ventures Berhad [Company No.: 200201010450 (578113-A)] ("MDV") to the 1st Defendant, including taking all reasonable and necessary steps to set aside the Judgment in Default of Appearance dated 30.10.2023 in the High Court at Kuala Lumpur, Suit No.: WA-22M-1460-08/2023 ("JIDA") obtained by MDV against the Defendants and the Plaintiff; b) A declaration pursuant to Clause 1(b) of the Deed of Indemnity that the Defendants should irrevocably and unconditionally "indemnify and keep the Indemnitee [Plaintiff] indemnified at all times and hold the Indemnitee [Plaintiff] harmless from and in respect of all Losses (as defined herein) which may be suffered, sustained or incurred by the Indemnitee [Plaintiff] directly or indirectly as a consequence of, in connection with being a Director of the Company [2nd Defendant] and/or being the Guarantor for the Facility [MDV Facility]", including all sums, damages, losses, and/or costs incurred by the Plaintiff as a result of the JIDA.

In an application to convert an Originating Summons to a Writ action, the principle is that he who asserts must prove, and here, the Defendants carry a legal burden to show circumstances and documentary evidence to justify the grant of a conversion, and all such reasons must be deposed in the affidavit filed in support of the application. (See: The Summit Subang USJ Management Corporation v. Ho Phoy Kwang & Anor [2023] CLJU 2649; CA).

Additionally, the Court must be mindful that under the present regime of procedural law, the main consideration for the Court is the expeditious, just and economical resolution of a dispute. A conversion of the Originating Summons to a writ is not suitable where the issue involves the construction of written law or interpretation of terms of a contract between competing parties.

The Plaintiff, in the present case, is seeking an indemnity based on the terms of the Deed in question. The reliefs sought make clear reference to the Deed.

The Defendants do not deny signing the Deed but say that the Plaintiff signed it much later and only for the purposes of the present suit. Additionally, the Defendants aver in the Affidavit in Support that there are events subsequent to the signing which negate the terms of the Deed.

I am mindful of the principle that he who asserts must prove. I am equally mindful of the fact that the terms of the Deed, being a written contract between the parties, are to be determined by the words found within the four corners of the contract. The interpretation to be given to the Deed is a question of law. The interpretative task then is that of the Court and not of any witness. (See NVJ Menon v. The Great Eastern Life Assurance Company Ltd [2004] 3 CLJ 96).

In the present case, the Defendants have not exhibited any that there are events subsequent to the signing of the Deed that negate the terms of the Deed which requires further investigation through a trial of the assertion carries no evidential value, and therefore I disregarded this assertion (see Teoh Yook Huwah v. Menteri Hal Ehwal Dalam Negeri & Anor [1993] 1 CLJ 261).

In variation of this Deed shall be of any force or effect unless in writing evidence before me to show that there has been a variation of the terms of the Deed in the manner envisaged by Clause 5(c) such that it mandates a trial involving witnesses. A bare assertion that there is a conflict of factual evidence is insufficient for the Court to convert an Originating Summons to a writ. In Syed Ibrahim bin Abdul Rahman v. Liew Su Chin [1984] 1 MLJ 160, the Federal Court adopted the approach as follows: a) "Not all disputes of fact necessarily raise serious questions to be tried. It is, of course, quite right to say that it is undesirable to resolve disputes on affidavit