Chong Boon Heng v Kajang Rocks Premix Sdn Bhd (BA-22NCvC-413-10/2022)

The Plaintiff filed this action to invalidate an Order of Court dated 15-9-2021 (“Impugned Order”) made in Shah Alam High Court Suit No: BA-22NCvC-21-01/2020 (“Suit 21”).

In Suit 21, the Defendant had sued the Plaintiff on a Guarantee Agreement dated 7-9-2004 that guaranteed the indebtedness of one Generasi Nirwana Sdn Bhd (“GNSB”) for goods sold and delivered. The Impugned Order was a final order for summary judgment entered against the Plaintiff. 14/03/2025 11:04:49 BA-22NCvC-413-10/2022 Kand. 28

GNSB was wound up on 16-3-2021 about 15 months after Suit 21 was filed in January 2020. The Impugned Order was obtained a year and 8 months or so later on 15-9-2021 when the Plaintiff failed to raise any triable issues.

The basis for this action is that the Impugned Order was allegedly obtained by fraud, in that the Plaintiff claims to have “discovered” a Credit Application Form dated 16-7-2018 submitted by GNSB to the Defendant for credit without the need for a guarantor (“2018 Credit Facility”). The Plaintiff claimed that it was fraudulently concealed from him and the Court by the Defendant.

Quite apart from the question of whether the 2018 Credit Facility was relevant to GNSB’s accrued and outstanding debt in Suit 21, the threshold question for determination in this action was whether there was any fraudulent concealment of the 2018 Credit Facility as alleged by the Plaintiff.

According to the Defendant, the debt in Suit 21 had accrued under a pre-existing credit facility secured by the Plaintiff’s personal guarantee. The 2018 Credit Facility did not require an additional personal guarantee because there was already one in operation to secure the debts of GNSB.

The Plaintiff was the director of GNSB who signed the pre-existing credit facility, the personal guarantee as well as the 2018 Credit Facility. The Plaintiff was also very much a party to Suit 21. In other words, the 2018 Credit Facility was not a secret document that the Plaintiff had no prior knowledge of.

In the circumstances, there could not have been any fraudulent concealment of the 2018 Credit Facility from the Plaintiff in Suit 21. He was aware of it since he signed it, but did not see fit to raise it in Suit 21 at any material time.

Premised on the above facts, the Plaintiff’s action to impeach the Impugned Order on grounds of fraudulent concealment of the 2018 Credit Facility is obviously unsustainable. Accordingly, I allowed the Defendant’s application to strike out the suit with costs of RM5,000.00. Bertarikh : 14 Mac 2025 SGD ELAINE YAP CHIN GAIK PESURUHJAYA KEHAKIMAN MAHKAMAH TINGGI MALAYA SHAH ALAM Peguam Untuk Plaintif: Ahmad Zayd Ahmad Zuber, Messrs Faisal & Zayd Untuk Defendan: Chong Samuel Man-Hon, Messrs Dorairaj, Low & Teh