CJ Century Technology Sdn Bhd v 1. Axisjaya Sdn Bhd (WA-22NCC-271-07/2020)

AXISJAYA SDN BHD [Company No.: 656023-H]

SERI MUTIARA DEVELOPMENT SDN BHD [Company No.: 865885-D] ... DEFENDANTS GROUNDS OF JUDGMENT [1] The application made by the Plaintiff in enclosure 8 is for summary judgment pursuant to Order 14 Rule 1(1) of the Rules of Court 2012. Background [2] The Plaintiff, a private limited company incorporated in Malaysia is a wholly owned subsidiary of CJ Century Logistics Holdings Berhad and is in the business of procurement logistics services and trading of electronical equipment. 2 [3] The Defendants are private limited companies incorporated in Malaysia and are subsidiaries of DBH Holdings Sdn. Bhd. (Company No.: 1113800-M). [4] The 1st Defendant had placed orders with the Plaintiff for the supply & delivery of Daikin Air Conditioning Systems including Testing & Commissioning for VRV & Split Units (“the goods”) and the Plaintiff had supplied the goods to the 1st Defendant in accordance with the 1st Defendant’s various purchase orders (“1st Defendant’s Purchase Orders”) as follows: No. Date Purchase Orders No. Delivery Date Amount

1.

19.3.2018 KH8/1250 08.05.2018 to 28.08.2018 3,942,676.67 2.

25.7.2018 KH8/1618 20.08.2018 to 7.12.2018 157,057.02 3.

28.8.2018 KH8/1728 29.8.2018 12,672.30 TOTAL 4,112,405.99 [5] The 2nd Defendant vide 2 Corporate Guarantees dated 5.4.2018 and 8.8.2018, agreed, undertook and guaranteed the payment on demand of all monies due to the Plaintiff from the 1st Defendant arising from or in connection with the supply of the goods to the 1st Defendant, limited to the sum of RM4,099,733.69. 3 [6] As at 6.8.2019, there was an alleged sum of RM3,041,823.91 owing to the Plaintiff by the 1st Defendant as follows: No. Invoice No. Delivery No.

IV-49394 DO-47026 240,465.24 2. IV-49418 DO-47043 345,144.48 3. IV-49514 DO-47117 289,249.62 4. IV-49546 DO-47149 394,094.22 5. IV-49602 DO-47201 99,925.14 6. IV-49735 DO-47317 573,756.80 7. IV-49798 DO-47366 260,144.14 8. IV-49825 DO-47388 208,860.28 9. IV-49846 DO-47401 209,619.24 10. IV-49934 DO-47474 44,586.78 11. IV-49964 DO-47493 171,542.98 12. IV-50064 DO-47573 141,389.37 13. IV-50143 DO-47643 12,672.30 14. IV-50785 DO-48140 50,373.32 TOTAL 3,041,823.91 [7] By letter of demand dated 9.8.2019 (“the 1st LOD”), the Plaintiff through its solicitors, Messrs Chooi & Company + Cheang & Ariff demanded from the 1st Defendant the outstanding amount of RM3,041,823.91 as appearing in the Plaintiff’s Statement of Account dated 6.8.2019 attached to the 1st LOD (exhibits TFL-10 and 9). [8] After the 1st LOD, the 1st Defendant made several partial payments to the Plaintiff as follows: 4

RM300,000.00 on 30.9.2019 via Maybank Cheque No.: 214563;

RM30,000.00 on 20.12.219 via Maybank Cheque No.: 191766;

RM30,000.00 on 10.1.2020 via Maybank Cheque No.: 192696;

RM30,000.00 on 6.3.2020 via Maybank Cheque No.: 041255; and

RM30,000.00 on 21.5.2020 via Maybank Cheque No.: 191996. [9] As at 22.6.2020, after payment of the above sums, a sum of RM2,621,823.91is claimed to be still due and owing, particulars of which are set out in the statement of account at exhibit TFL-12, the delivery orders and outstanding invoices for the goods are at exhibit TFL-13. [10] Exhibit TFL-14 details the interest charged for late payment. [11] By a letter of demand dated 11.6.20, (“the 2nd LOD”), the Plaintiff through its solicitors, Messrs. Chooi & Company + Cheang & Ariff demanded from the 2nd Defendant as guarantor, the outstanding amount of RM2,621,823.91 to be paid within 7 days from the date of the said letter. No payment was received. [12] Hence this suit filed by the Plaintiff for the sum of RM2,621,823.91 together with interest and cost. 5 The Defendants’ case [13] In resisting summary judgment, the Defendants’ contentions in essence are:

On 26.08.2019, the Plaintiff and the 1st Defendant had agreed and entered into a settlement agreement (‘1st Settlement Agreement’) to settle the outstanding sum on a twelve (12) months’ instalment basis via various post-dated cheques;

(ii) On 14.05.2020, the Plaintiff and the 1st Defendant had agreed and entered into a 2nd Settlement Agreement. Pursuant to the terms of the 2nd Settlement Agreement dated 14.05.2020, the outstanding sums were agreed to be paid by way of sixteen (16) monthly instalments;

(iii) There are five (5) triable issues which warrant the dismissal of the Plaintiff’s application for summary judgement as follows:

whether the Plaintiff has failed to render satisfactory services and fail to comply with the terms and conditions of agreement between the Plaintiff and 1st Defendant;

whether the Plaintiff had failed to comply with the supply and delivery of the said Goods within the time stipulated, the specifications and safety requirements under the agreement, and performing tasks in a prompt manner; 6

whether the disputed alleged owing sum (sic) taking into consideration the various failures by the Plaintiff;

whether the Plaintiff’s claim against the 1st Defendant is considered as premature as the rest of the 13 post-dated cheques were not due and payable at the time of filing this suit; and

whether the 2nd Defendant’s obligation as a guarantor has been discharged following the settlement agreement (sic) between the Plaintiff and the 1st Defendant. [14] The Defendants urged upon this Court that:

the threshold to resist summary judgment is relatively very low as they need only raise one triable issue to be given leave to defend, citing HSBC Bank Malaysia Bhd v. Ng Tien Beng & Ors [2008] 9 CLJ 631;

(ii) the Defendants need only raise a plausible defence – Noh Hyoung Seok v Perwira Affin Bank Bhd [2004] 2 MLJ 203;

(iii) that the Plaintiff and 1st Defendant had agreed and entered into a 2nd Settlement Agreement dated 14.05.2020, the effect of which:

extinguished the earlier agreement and constituted a fresh agreement between the parties; 7

the 2nd Defendant did not execute any guarantee nor was there assent and consent by the 2nd Defendant to act as guarantor for the 2nd Settlement Agreement and is as such discharged of liability as guarantor and cited s. 88 of the

the remedy of the Plaintiff would be pursuant to the 2nd

(iv) on the date of filing this suit on 2.07.2020; only 2 payments amounting to RM60,000 being payment of RM30,000 each due on 31.5.2020 and 30.6.2020 were payable to the Plaintiff; the first postdated cheque having cleared into the Plaintiff’s account illustrates the Plaintiff’s recognition of the Settlement Agreement as superceding the Principal Agreement and the Guarantees;

the claim for all 16 payments under the 2nd Settlement Agreement is premature;

(vi) relied heavily on Huat Hing Rubberwood Sdn Bhd v Goodnite Sdn Bhd & Ors [2018] 1 LNS 1770, [2018] MLJU 1650 which was affirmed by the Court of Appeal in Huat Hing Rubberwood Sdn Bhd v Goodnite Sdn Bhd & Ors [2019] 1 LNS (O) 11 for the argument that the first postdated cheque having cleared into the Plaintiff’s account illustrates the Plaintiff’s recognition of the Settlement Agreement as superceding and extinguishing the Principal Agreement as well as the Guarantees and constitutes a fresh agreement between the parties; 8

(vii) As for the Settlement Agreement:

it clearly defines the total outstanding sum as RM2,651,

823.91;

it further defines that the debt becomes due and payable only when any cheque was not honoured ad this cannot be interpreted to mean the “total outstanding sum” but only the debt outstanding at the material time; and

evidence of the parties in negotiating and preparing the draft Settlement Agreement must be the subject of a trial. Law on Summary Judgment Applications [15] As to the court’s function in hearing an application under Order 14, it will be useful to recall the authoritative pronouncements of the Federal Court in National Company For Foreign Trade vs. Kayu Raya Sdn Bhd [1984] 2 MLJ 300: “We think it appropriate to remind ourselves once again that in every application under Order 14 the first considerations are (1) whether the case comes within the Order and (b) whether the Plaintiff has satisfied the preliminary requirements for proceeding under Order 14. For the purposes of an application under Order 14 the preliminary requirements are:

the Defendant must have entered an appearance;

(ii) the statement of claim must have been served on the defendant; and 9

(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.” [16] 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 of the Rules of Court 2012 application for summary judgment, the Court must look at the matter as a whole and ask itself whether the Defendant has 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. [17] 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. [18] 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. [19] In Bank Negara Malaysia v. Mohd Ismail Ali Johor & Ors [1992] 1 MLJ 400, the Supreme Court succinctly summarised the approach to be taken in dealing with the affidavits: 10 “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.)” [20] I am also mindful of the principle governing the exercise of power under O.14 of the Rules of Court 2012 as stated in Jacobs v. Booth Distillery Co. [1901] 85 LT 262 where Halsbury LC observed: “People do not seem to understand that the effect of Order 14 is that, upon the allegation of the one side or the other, a man is not to be permitted to defend himself in court; that his rights are not to be litigated at all. There are something too plain for argument; and when there were pleas put in simply for the purpose of delay which only added to the expense, and where it was not in aid of justice that such things should continue, Order 14 was intended to put an end to that state of things, to prevent sham defences, from defeating the right of parties by 11 delay, and at the same time causing great loss to the Plaintiff s who were endeavouring to enforce their rights. “ [21] 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).” [22] In Citibank NA v. Ooi Boon Leong [1981] 1 MLJ 282, Raja Azlan Shah CJ (as HRH then was) observed: “That brings us to the important question whether the Assistant Registrar was entitled to deal with the case under the R.S.C. Order 14 procedure. We have often said in this court many a time that where all the issues are clear and the matter of substance can be decided once and for all without going to trial there is no reason why the Assistant Registrar or the judge in chambers, or, for that 12 matter this court, shall not deal with the whole matter under the R.S.C. Order 14 procedure.” Findings and Decision of this Court [23] As reference has been made to the alleged 1st and 2nd Settlement Agreement, both are reproduced for easy reference. Alleged 1st Settlement Agreement (exhibit TFL 17): “Our Ref : CJCTSB/ASB/2019-08/001 Your Ref : BF.by.L20190605 Date : 26-08-209 LOT 4A, JALAN SULTAN MOHAMED 3, BANDAR SULTAN SULEIMAN, 42000 PORT KLANG, SELANGOR DARUL EHSAN. Mobile: +03-3322 2488 Fax: 03-3322 2498 Without Prejudice Dear Sirs/Madam, Proposed Settlement of Accounts

We refer to the above matter where there is a claimed sum of RM3,041,823.91 (“Outstanding Sum”) from you.

On a strictly without prejudice basis and in order to settle the above matter amicably, we propose the following in full and final settlement of the Outstanding Sum RM3,041,823.91: 13

2.1.1.1 RM300,000.00 payable on 30-09-2019;

2.1.1.2 RM249,256.70 payable on 31-10-2019;

2.1.1.3 RM249,256.70 payable on 30-11-2019;

2.1.1.4 RM249,256.70 payable on 31-12-2019;

2.1.1.5 RM249,256.70 payable on 31-01-2020;

2.1.1.6 RM249,256.70 payable on 29-02-2020;

2.1.1.7 RM249,256.70 payable on 31-03-2020;

2.1.1.8 RM249,256.70 payable on 30-04-2020;

2.1.1.9 RM249,256.70 payable on 31-05-2020;

2.1.1.10 RM249,256.70 payable on 30-06-2020;

2.1.1.11 RM249,256.70 payable on 31-07-2020;

2.1.1.12 RM249,256.91 payable on 31-08-2020;

If you are agreeable to our Proposal, kindly indicate your agreement to the above by signing and stamping on the duplicate copy of this letter and returning the same to us. Thank you. We agree to the above. Yours faithfully Signature : .................................... Name : .................................... Signed Date : .................................... LAI SOON YIP Stamp : ..................................... (Director of Corporate Planning & Finance)” Alleged 2nd Settlement Agreement exhibit WCL-3): “Date: 14th May 2020 14 LOT 4A, JALAN SULTAN MOHAMED 3, BANDAR SULTAN SULEIMAN, 42000 PORT KLANG, SELANGOR DARUL EHSAN. Mobile: +03-3322 2488 Fax: 03-3322 2498 Without Prejudice Dear Sirs/Madam,

We refer to the above matter where there is purported outstanding sum of RM2,651,823.91 (“Outstanding Sum”) due to you. On a strictly without prejudice basis and in order to settle the above matter amicably, we propose the following in full and final settlement of the Outstanding Sum RM2,651,823.91.

1.1 RM30,000.00 payable on 30-04-2020 1.2 RM30,000.00 payable on 31-05-2020 1.3 RM30,000.00 payable on 30-06-2020 1.4 RM30,000.00 payable on 31-07-2020 1.5 RM210,985.33 payable on 31-08-2020 1.6 RM210,985.33 payable on 30-09-2020 1.7 RM210,985.33 payable on 31-10-2020 1.8 RM210,985.33 payable on 30-11-2020 1.9 RM210,985.33 payable on 31-12-2020 1.10 RM210,985.33 payable on 31-01-2021 1.11 RM210,985.33 payable on 28-02-2021 1.12 RM210,985.33 payable on 31-03-2021 1.13 RM210,985.33 payable on 30-04-2021 1.14 RM210,985.33 payable on 31-05-2021 1.15 RM210,985.33 payable on 30-06-2021 1.16 RM210,985.33 payable on 31-07-2021 15

In the event that any of the above cheque issued by Axisjaya is stopped or rejected or bounced or dishonoured by the Bank for any reason whatsoever then the Debt together with all interests shall become immediately due and payable by Axisjaya to CJ Century.

Century shall be then be at liberty to take all necessary actions against Axisjaya including but not limited to enforcing the guarantee to recover the Debt together with interest and costs.

Alternatively, without prejudice to Seri Mutiara Development Sdn Bhd, it is willing to offer 2 units at Kuchai East Service Residence, Jalan Kuchai Lama, Kuala Lumpur, towards partial settlement on behalf of Axisjaya. Should you agree, further details pertaining to the said units would be made available.

Kindly consider this offer to hasten the debt settlement between us.

We thank you for your kind consideration. Yours faithfully, (Signed) Lai Soon Yip Director of Corporate Planning & Finance” [24] Having addressed enc. 8 with the foregoing legal principles in mind, I find no merits in the issues raised by the Defendants to resist summary judgment. [25] This Court finds that the issues raised by the Defendants are not triable issues or issues which justify a trial as the defence has not disclosed any merits but is an afterthought defence. This Court finds that the Plaintiff’s claim is clearly incontestable and that it is a suitable case to 16 be disposed of summarily (see Bank Negara Malaysia v Mohd Ismail (supra). [26] I deal with the issues raised by the Defendants. The first two issues are taken together in this judgment. Whether the Plaintiff has failed to render satisfactory services and failed to comply with the terms and conditions of agreement between the Plaintiff and 1st Defendant? Whether the Plaintiff had failed to comply with the supply and delivery of the said Goods within the time stipulated, the specifications and safety requirements under the agreement, and performing tasks in a prompt manner? [27] On these two issues, the Plaintiff countered that the 1st Defendant had never raised any dispute, objection, query, complaint or protest in respect of all the goods supplied by the Plaintiff until the filing of this action; never challenged any delivery orders; never applied to the Plaintiff for debit notes in respect of the goods received which allegedly failed to conform to the terms and conditions and/or are of unmerchantable quality; and the 1st Defendant even made partial payments. [28] After evaluating the affidavits and pleadings, other than bare assertions, I find that the 1st Defendant’s affidavit evidence had no contemporaneous documents or any other evidence at all condescending into particulars to support these complaints. I do not even see a whisper of protest at all. 17 [29] In Bank Negara Malaysia v Mohd Ismail & Ors (supra) at pg 408, the Supreme Court speaking through Mohamed Azmi FCJ had occasion to say: “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 has not only 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 facts or the law arising from each case as disclosed in the affidavit evidence before the court. On the treatment of conflict of evidence on affidavits, Lord Diplock speaking in the Privy Council on Eng Mee Yong & Ors v Letchumanan had this to say at p 217: Although in the normal way it is not appropriate for a judge to attempt to resolve conflicts of evidence on affidavit, this does not mean that he is bound to accept uncritically, as raising a dispute of fact which calls for further investigation, every statement on an affidavit however equivocal, lacking in precision, inconsistent with undisputed contemporary documents or other statements by the same deponent, or inherently improbable in itself it may be.” [30] I note in fact, that each delivery order which contains a Statement “We confirm acceptance of the above goods are in good order and condition” was in fact signed, stamped and acknowledged by the 1st Defendant. How then can the Defendants at this eleventh hour claim that that the Plaintiff did not render satisfactory services, failed to comply with the terms and conditions of agreement between the Plaintiff and 1st Defendant, failed to comply with: (i) the supply and delivery of the said Goods within the time stipulated, (ii) the specifications and safety requirements under the agreement, and (iii) performing tasks in a prompt manner? 18 [31] I find that these 2 issues raised by the 1st Defendant are mere bare assertions which do not give rise to triable issues. My findings are guided by:

the Court of Appeal’s decision in Chen Heng Ping & Ors v Intradagang Merchant Bankers (M) Bhd [1995] 2 AMR 1655 at 1659-1660; [1995] 2 MLJ 363 at 367 where Mahadev Shankar JCA delivering judgment of the Court aptly said: “When an application is made for summary judgment under Order 14 supported by an affidavit which goes to show that there is no defence, the defendants must show cause why leave to defend must be given. This means that the defendants must provide answers on oath which constitute evidence that they have a defence which is fit to be tried. Denials in a defence do not constitute evidence. They are challenges to the other side to show proof. In the present case the guarantors do not appear to have appreciated this. Their affidavits merely relied on the defence they pleaded, which consists of bare denials and points of law which they could not sustain.”

(ii) the case of John Wallingford v The Directors of the Mutual Society and the Official Liquidator (1880) 5 AC 685 where Lord Blackburn, in his judgment at p. 704, said: "I think that when the affidavits are brought forward to raise that defence, they must, if I may use the expression, condescend upon particulars. It is not enough to swear, "I say I owe the man nothing". Doubtless, if it was true, that you owed the man nothing, as you swear, that would be a good defence. But that is not enough. You must satisfy the judge that there is reasonable ground for saying so. So again, if you swear that there was fraud, that will not do. It is difficult to define 19 it, but you must give such an extent of definite facts pointing to the fraud as to satisfy the judge that those are facts which make it reasonable that you should be allowed to raise that defence. And in like manner as to illegality, and every other defence that might be mentioned. So looking at the affidavits (they are very long and I will not go through them) which were used before Mr. Justice Manisty, I think that in none of those particulars did the appellant satisfy the burden that was cast upon him. He makes general statements of fraud, but nowhere does he condescend upon any particular of fraud, such as in my mind, if I had been in Mr. Justice Manisty's place, would have made me think that it was at all fit that he should be allowed to defend upon that ground. There are long statements resulting in saying that this society was illegal upon various grounds, which I cannot follow at all. One ground, among others, is, because there was a drawing of lots on one occasion, therefore it was illegal as coming under the Lottery Acts. I cannot think that that was a good ground of defence."(emphasis added) Whether the disputed sum is owing taking into consideration the various failures by the Plaintiff? [32] I have earlier already concluded that the alleged failures are bare assertions. I also find that the sum claimed by the Plaintiff is indisputable for reasons here below. [33] As I have said earlier in paragraph 30, each delivery order with the Statement “We confirm acceptance of the above goods are in good order and condition” was signed, stamped and acknowledged by the 1st Defendant. Besides that, it is also readily evident to me that: 20

each invoice is endorsed with a note stipulating “Late payment charge of 1.5% per month will be charged on any overdue account”; and

(ii) each Statement of Account contains a stipulation “Any discrepancy must be reported to us within 10 days.” [34] The Plaintiff’s invoices and statement of account collectively also constitute binding contracts for all the goods supplied as illustrated in the following cases: i. PERNAS TRADING SDN BHD v PERSATUAN PELADANG BAKTI MELAKA [1979] 2 MLJ 124 [FC]: “The sales invoice and the delivery note being the contract reduced in writing between the appellants and the respondents section 92 therefore applies. Hence, no value could be placed on the content of this letter and the affidavit of Zainab binti Tamby pertainning to the goods being ordered by her on behalf of Syahazam Sdn. Bhd.” ii. Orion Integrated Sdn Bhd v PFC Engineering Sdn Bhd [2014] 9 MLJ 695 [HC]: “[20] It has been held that it is a well-established and accepted market practice to impose interest at 1.5% per month for the sales of goods and services involving invoices and statements of account and that these documents would collectively constitute a binding contract: Tansa Enterprise Sdn Bhd v Temenang Engineering Sdn Bhd [1994] 2 MLJ 353,Perangsang Dagang Sdn Bhd v Tanjung Teras Sdn Bhd & Ors [2007] MLJU 716; [2008] 2 CLJ 199.” 21 iii. Caltex Oil Malaysia Ltd v Classic Best Sdn Bhd & Ors [2007] 4 MLJ 772 [HC]: “[10] 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, namely the statement of accounts, invoices, delivery orders, delivery notes and the debit notes. These documents would collectively constitute a contract reduced into writing.” iv. PERANGSANG DAGANG SDN BHD v. TANJUNG TERAS SDN BHD & ORS [2008] 2 CLJ 199 [HC]: “[12] In cases involving goods sold and delivered, there is no one piece of agreement signed by both parties. Indeed, there is nothing of that sort. Instead, the law, through the guidance of cases, had recognised that all the documentation that accompany the day to day transactions would collectively constitute a binding contract. The documents as one would recollect from the vast number of cases are Delivery Orders, Delivery Notes, Invoices, Statement of Accounts and Debit Notes. In the case of Caltex Oil Malaysia Ltd v. Classic Best Sdn Bhd & Ors [2006] 1 LNS 266, Suriyadi J held that: 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, namely the statement of accounts, invoices, delivery orders, delivery notes and the debit notes. These documents would collectively constitute a contract reduced into writing.” [35] The Plaintiff is therefore entitled to the contractually agreed rate of interest at 1.5% per month for overdue accounts as found in the relevant 22 invoices. Besides the above cases, see also Woon Hoe Kan & Sons Sdn Bhd v Bandar Raya Developments Bhd [1974] 1 MLJ 24. [36] It is to be borne at the forefront of the mind that the Statement of Account stipulated that any discrepancy must be reported to the Plaintiff within 10 days. There is overwhelming evidence that the 1st Defendant has failed to object to the amount claimed by the Plaintiff in its invoices and/or statement of accounts and in the 1st LOD. In fact, after the 1st LOD was sent, partial payments continued to be made by the 1st Defendant. As such, it is deemed that the 1st Defendant has accepted the amount claimed by the Plaintiff is correct and accurate. The 1st Defendant is therefore estopped from saying the amount claimed is not due. See: i. Boustead Trading Sdn Bhd –v-Arab-Malaysian Merchant Bank Berhad [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 23 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 24 “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) SdnBhd v Arab Malaysian Merchant Bank SdnBhd [1995] 3 MLJ 331; Hong Leong Leasing SdnBhd v Far East Knitting Sdn Bhd [1996] 2 MLJ 251; Chong Yoong Choy v UOL Factoring SdnBhd [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).” 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 25 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

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. Suangyan Projects Sdn Bhd & 3 Ors [2006] 1 LNS 358; [2007] 4 AMR

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) [37] If the allegations made by the 1st Defendant that the Plaintiff has failed to render satisfactory services and failed to comply with the terms and conditions of agreement between the Plaintiff and 1st Defendant; failed to comply with the supply and delivery of the said goods within the time 26 stipulated, the specifications and safety requirements under the agreement, and performing tasks in a prompt manner, and do not owe the sum claimed are in fact true, it begs the salient question why the 1st Defendant kept such an inelegant silence instead of raising these issues immediately and/or dispute the amount claimed by the Plaintiff in its invoices and/or statement of account expeditiously and vigorously. Raising the same only after suit is filed in this Court’s view is simply too late and smacks of an afterthought. [38] I find of utmost pertinence is the 1st LOD at exhibit TFL-10, the contents of which are not denied. This LOD stated that a partial payment of RM63,000 was made, 4 post dated cheques, 3 of which were for RM1,000,000 each and the 4th cheque for RM591,450.59 were given but the Plaintiff were told not to bank in for lack of funds. Instead, the Plaintiff was then paid 2 sums amounting to RM600,000 making a total payment to RM663,000. [39] What is crucial and bears repetition is that the 1st Defendant kept silent and did not at any time dispute the Plaintiff’s 1st LOD. [40] In a business relationship, the failure of a party to deny the opposing party’s assertion or demand amounts to an implied admission. See: i. WONG HON LEONG DAVID v NOORAZMAN BIN ADNAN [1995] 3 MLJ 283 [CA] at pages 288 to 289: “During argument, we registered our surprise at the learned Judge’s reluctance to enter judgment for this sum of RM100,000. After all, the appellant had failed to respond to the letter of 17 December 1991. If 27 there had never been an agreement as alleged, it is reasonable to expect a prompt and vigorous denial. But, as we have pointed out, there was no response whatsoever from the appellant. In this context, we recall to mind the following passage in the judgment of Edgar Joseph Jr J in Tan Cheng Hock v Chan Thean Soo [1987] 2 MLJ 479 at p 487: In Wiedemann v Walpole [1891] 2 QB 534 at p 537 an action for breach of promise of marriage, it was held, that the mere fact that the defendant did not answer letters written to him by the plaintiff in which she stated that he had promised to marry her, was no evidence corroborating the plaintiff's testimony in support of such promise. Lord Esher MR, in his judgment, remarked, 'Here, we have only to see whether the mere factof not answering the letters, with nothing else for us to consider is any evidence in corroboration of the promise'. (Emphasis supplied.) Earlier, in his judgment, he said, 'Now there are cases – business and mercantile cases in which the courts have taken notice that, in the ordinary course of business, if one man of business states in a letter to another that he has agreed to do certain things, the person who receives that letter must answer it if he means to dispute the fact that he did so agree.” (Emphasis added.) ii. The principles in Wong Hon Leong David’s case were applied in RAINBOW ENTERPRISE CO LTD v. HMD AUTOMOBILE SDN BHD [2014] 1 LNS 1194, [2015] MLJU 894 [HC] where the Court held in that case that the Defendant’s allegation that the Plaintiff’s vehicles are defective is a sham defence and does not amount to a triable issue as the Defendant did not raise any complaint after taking delivery of the vehicles from the Plaintiff. It is pertinent to note that the Defendant only raised the allegation 28 of defective vehicles after the Plaintiff has commenced a legal action to recover the outstanding sum, which is similar to the present case where the Defendant only raised the allegations at paragraph 12 above after the Plaintiff has commenced this legal suit on 5.7.2016. “I shall now consider the allegation of the defendant that some of the vehicles are defective and that they are entitled to a set off. The defendant's managing director alleged in her two affidavits in opposition that some of the vehicles were defective and therefore she had so to sell them at a lower price. She also said in her affidavit that she had complained to the representative of the plaintiff about the alleged defects in the vehicles. She did not issue a single letter complaining about the alleged defect after taking delivery of the vehicles. Her counsel explained in his submission that the complaints were made orally. However, it is baffling that when the demand for payment was formally issued in "DK 3" on 11th December 2012, the defendant did not see fit to complain about alleged defects in writing. The defendant only complained in writing to her own solicitors about the alleged defects from July 2013 onwards. By that time, the plaintiff had already initiated action against the defendant by way of Originating summons.” …….. However, the court in hearing a summary judgment application is entitled to examine the affidavits critically and not merely conclude that there is a triable issue because the claim is disputed. In this case, the only defence is the defence of set off because of alleged defects in the vehicles. However, the defendant has not only been silent about the alleged defects but has also admitted the debt. Even after the formal demand was made, the defendant did not complain. When legal action was instituted, the 29 defendant finally raised the issue of defects and the failure of the plaintiff to issue a warranty for the used vehicles. However, even in the affidavits in opposition, the defendant was unable to state how much they are entitled to set off against the outstanding sum on their account. In the premises, it is not difficult to conclude that the defence is a sham and that there is in triable issue.” (emphasis added) iii. Ling Hock Ling v Tai Lian Development Co [2006] 6 MLJ 712 [CA] at pages 714 to 715: “[3] With these facts in hand we turn to consider the first issue. Now, here we have a case where the defendant upon receiving copies of the plaintiff's letters to FELDA did not make any protest about his description as a subcontractor. If it was not the truth he should have said so. But he kept quiet. In these circumstances it does not lie in his mouth to say that he was not the plaintiff's subcontractor. See, Wong Hon Leong David v Noorazman bin Adnan [1995] 3 MLJ 283. The defendant's complaint in respect of the first issue is therefore without merit.” iv. The principle in David Wong Hon Leong’s case was affirmed by the Federal Court in DREAM PROPERTY SDN BHD v. ATLAS HOUSING SDN BHD [2015] 2 CLJ 453 [FC] at page 478: “…It is the ordinary nature of businessman to immediately refute any proposition injurious to him contained in letters and not to let it stand (see David Wong Hon Leong v. Noorazman Adnan [1995] 4 CLJ 155). ….” 30 Whether the Plaintiff’s claim against the 1st Defendant is premature as the rest of the 13 post-dated cheques were not due and payable at the time of filing this suit [41] After the 1st LOD was received by the 1st Defendant, it had by letter dated 26.8.19 (exhibit TFL-17) proposed to the Plaintiff on a without prejudice basis to settle the outstanding sum of RM3,041,823.91 by 12 monthly instalments through various postdated cheques as set out at paragraph 23 above (“1st Settlement Proposal”), the contents of which to me point to an unequivocal admission of debt. It is also to be noted that the Plaintiff did not sign on the letter. [42] It is not disputed that the 2nd instalment cheque dated 31.10.19

the letter dated 14.5.20 (exhibit WCL-3) is not a Settlement Agreement as alleged by the Defendants but a 2nd settlement proposal, which the 1st Defendant had breached, and is no longer valid as the month of May cheque was not banked in.

(ii) the contents of the 2nd settlement proposal does not change the feature of the debt and obligations of the parties as the Plaintiff’s claim against the 1st and 2nd Defendants is simply for goods sold and delivered and an enforcement of the Guarantees;

(iii) The 2nd settlement proposal was made on a without prejudice basis which does not compromise the Plaintiff’s contractual rights towards the outstanding sum including the enforcement of the Corporate Guarantees, supporting his argument with the case of RHB Bank Berhad v Unijaya Teknologi [2016] 1 LNS 1001; that Huat Hing Rubberwood’s case is distinguishable and paragraph 3 of the 2nd settlement proposal which reads: 32 “Century shall be then be at liberty to take all necessary actions against Axisjaya including but not limited to enforcing the guarantee to recover the Debt together with interests and costs.”

(iv) if the 2nd settlement proposal is construed as a whole, it is clear that the same is only a mere forbearance and/or gratuitous indulgence by the Plaintiff to the 1st Defendant to settle the outstanding sum due and owing and does not discharge the 2nd Defendant of its liabilities under the Corporate Guarantees;

S. 90 of the CA provides that: “Mere forbearance on the part of the creditor to sue the principal debtor or to enforce any other remedy against him does not, in the absence of any provisions in the guarantee to the contrary, discharge the surety”;

(vi) the Corporate Guarantees are still enforceable given that the 2nd Defendant has given a blanket consent, giving the Plaintiff the freedom to make variations in the form of giving credit to the 1st Defendant at any time which is exactly what the 2nd settlement proposal entails. This is evident from Clause 1 of the Corporate Guarantees at Exhibit TFL-7: “IN CONSIDERATION of you agreeing to supply goods and services and/or give credit to Axisjaya Sdn Bhd (Company No. 656023-H) (“Customer”) of Level 2, Gem In Mall, Mutiara Ville, Persiaran Sepang, Cyber 11, 63000 Cyberjaya, Selangor, we, Seri Mutiara Development Sdn Bhd (Company No. 865885-D), do hereby guarantee you the payment on demand of all monies due to you by the Customer which now are or shall at any time hereafter be owing to you by the Customer arising from or in connection with the said supply of goods and services and/or the giving of credit to the Customer 33 as aforesaid at any time and from time to time PROVIDED ALWAYS THAT the total sum recoverable from us under this Guarantee shall be limited to the sum of RM3,942,676.67 (Ringgit Malaysia: Three Million Nine Hundred Forty Two Thousand Six Hundred Seventy Six and Sen Sixty Seven Only) for principal only together with GST, interest thereon and costs, chargers and expenses incurred by you in enforcing this Guarantee and that the goods and services supplied are in accordance with Daikin Malaysia Sales & Service Sdn Bhd’s Quotation No. 20411438 dated 12th March 2018 and Quotation No. 20411451 dated 6th March 2018.”

(vii) the wordings “and/or the giving of credit to the Customer as aforesaid at any time and from time to time” goes to show that the 2nd Defendant has given the consent to the Plaintiff that it may at any time from time to time give whatever indulgence to the 1st Defendant to settle the outstanding sum due and owing to the Plaintiff. Therefore, the Plaintiff submits that the 2nd settlement proposal does not discharge the 2nd Defendant of its liabilities under the Corporate Guarantees;

(viii) the 1st Defendant’s argument that the claim is premature is far-fetched, implausible and simply cannot hold water as it is undisputed that the 1st Defendant had breached the 2nd settlement proposal when it had failed to make the second instalment payment which is not denied.

(ix) By the 1st Defendant’s very own conduct, the Plaintiff is entitled to put an end to the 2nd settlement proposal, and claim for the outstanding sum of RM2,621,823.91 which remains due and owing to the Plaintiff by the 1st Defendant and relied on s. 40 of 34 the CA: “When a party to a contract has refused to perform, or disabled himself from performing, his promise in its entirety, the promisee may put an end to the contract, unless he has signified, by words or conduct, his acquiescence in its continuance.” [46] I agree with the assertions of learned counsel for the Plaintiff. [47] From the outset from before the 1st LOD was sent, the 1st Settlement Proposal and the 2nd Settlement, it is more than clear that the 1st Defendant had defaulted in its payment obligations and is now in the Court’s view, conveniently hiding behind what it calls the “2nd Settlement Agreement” to avoid payment of the full balance sum due to the Plaintiff. It is the Plaintiff who had been indulgent. [48] I note that the cheques given to the Plaintiff under the 2nd settlement proposal were given sans the 1st two instalments; of the 1st cheque due on 30.4.20, the 1st Defendant did not bank in till the 3rd week of May and the month of May cheque was not banked in at all. [49] It appears clear to this Court that after what happened as set out in the 1st LOD and the stopping of payment of the 2nd instalment pursuant to the 1st Settlement Proposal, that similarly, the 2nd payment under the 2nd settlement proposal was not banked in, promises made to pay were made to be broken as it were. For the Defendants to now claim after having undoubtedly benefitted from the Plaintiff’s indulgences, that this 2nd settlement proposal is a Settlement Agreement which has compromised the Principal Agreement as such the Plaintiff's claim is premature, will be manifestly unjust to the Plaintiff. 35 [50] I also find that such an argument is misconceived as the settlement proposal was nothing more than a credit indulgence by the Plaintiff to the 1st Defendant. As set out in paragraph 23 of this judgment, both the 1st and 2nd settlement proposal issued by the 1st Defendant were captioned “without prejudice” by the 1st Defendant. Clause 2 and 3 of the 2nd settlement proposal in fact stated: “2. In the event that any of the above cheque issued by Axisjaya is stopped or rejected or bounced or dishonoured by the Bank for any reason whatsoever then the Debt together with all interests shall become immediately due and payable by Axisjaya to CJ Century.

Century shall be then be at liberty to take all necessary actions against Axisjaya including but not limited to enforcing the guarantee to recover the Debt together with interest and costs.” [51] It is my opinion that based on the above wordings, estoppel will operate to prevent the 1st Defendant from attempting to assert that the Plaintiff’s claim is premature at this stage. In the case of KGN Jaya Sdn Bhd vs. Pan Reliance Sdn Bhd [1996] 1 MLJ 233, the Court of Appeal held as follows: “We are of the view that it would be a travesty of justice if we were to accede to the appellant’s arguments. We are left in no doubt that the undisputed facts of this case admit of the conclusion that the respondent was, by the conduct of the appellant, lulled into the belief that the appellant had no challenge to the accounts, leave alone the legal relationship between the parties. To put it another way, the appellant, by its silence coupled with other circumstances of the case, encouraged the respondent to believe that it intended to raise no challenge to the existence of a prior legal relation between the parties 36 or to the figure which the account showed as owing by it. Having do so, it ought not to be permitted to now contend otherwise. It follows that it does not, therefore, lie in the mouth of the appellant to now deny the respondent’s claim. It would be plainly inequitable to do so. An examination of the facts leads us to this conclusion. The legal basis upon which such a conclusion may be sustained is well-settled and it is now beyond question. See Boustead Trading [1985] SdnBhd v Arab-Malaysian Merchant Bank Berhad [1995] 3 MLJ 331.” [52] As the Defendants had relied heavily on Huat Hing’s case, to put things in perspective, it is necessary to embark on a brief analysis of the said case to show that ultimately, the defence’s contention is obviously unsustainable and deeply flawed. [53] The salient background facts of the Huat Hing case are:

At all material times, Dato’ Chew Kar Chong (‘Dato Chew’) wanted to purchase 85% of the share capital of a company known as Second Home Properties Sdn. Bhd. (‘Second Home’).

(ii) As such, Dato’ Chew entered into an investment agreement dated 17.4.2012 (‘Investment Agreement’) with Huat Hing Rubberwood Sdn. Bhd (‘Huat Hing’) wherein Huat Hing paid Dato’ Chew RM5,000,000.00 to enable Dato’ Chew to purchase 40% shares in Second Home.

(iii) The salient terms and conditions of the Investment Agreement, amongst others, are as follows: 37

Dato’ Chew is to pay RM3,000,000.00 to Huat Hing within 6 months from the date of Investment Agreement;

Dato’ Chew is to pay RM5,000,000.00 to Huat Hing within 12 months from the date of Investment Agreement; and

There is to be a Letter of Guarantee by Goodnite Sdn. Bhd. (‘Goodnite’), guaranteeing the due performance of Dato’ Chew as set out in (a) and (b) above.

(iv) Goodnite executed a letter of guarantee (‘Letter of Guarantee’) in favour of Huat Hing and guaranteed the due performance of Dato’ Chew under the Investment Agreement. The salient terms and conditions of Letter of Guarantee are: “In consideration of the Agreement dated ...... whereby the Investor will provide funds to CKC (Chew Kar Chong) who shall purchase 85% ordinary shares of Second Home Properties Sdn Bhd ..... and in consideration of CKC covenanting to comply and make payment to the Investor pursuant to the terms of the said Agreement, we Goodnite Sdn Bhd (which CKC has controlling interest) of .... hereby guarantee the due performance by CKC of his obligations therein. We shall indemnify and keep indemnified the Investor by performing the obligations there in the event of non-performance by CKC.”

Dato’ Chew reneged on the Investment Agreement and did not pay Huat Hing the sum RM8,000,000.00. However, on 38 31.3.2014, a company known as Hotwer Properties Sdn Bhd, of which Dato’ Chew was apparently a shareholder/director paid Huat Hing RM1,000,000.00 only.

(vi) Dato’ Chew passed away on 28.7.2017.

(vii) In 2014, a settlement agreement (‘Settlement Agreement’) was executed between Huat Hing, Dato’ Chew and Second Home with the intention to settle Dato’ Chew’s liabilities under the Investment Agreement. The salient terms and conditions of the Settlement Agreement, amongst others, are as follows:

9 units of condominium in Second Home shall be offered to

Huat Hing shall nominate nominees to purchase the 9 units of condominium and Second Home shall enter into sales and purchase agreements with Huat Hing’s nominees; and

The sale proceeds received from Huat Hing’s nominees shall be reverted to Huat Hing. [54] The contrasting facts of the present case with Huat Hing inter alia are:

firstly, the Guarantee in the instant case is a continuing guarantee unlike in Huat Hing;

(ii) secondly, in this case, the 2nd Defendant as guarantor expressly in clause 5 of the Guarantee authorized the Plaintiff to as it 39 deems fit to grant time or any other indulgence to the 1st Defendant. Clause 5 reads as follows: “5. You shall be at liberty without discharging us from liability to grant time or any other indulgence to the Customer in respect of credit and/or goods and services supplied to the Customer and to accept payment from the Customer.”

(iii) thirdly, in Huat Hing, Wong Chee Lin J found in paragraph 71 of her judgment that the Settlement Agreement was silent on the guarantee whereas here, clause 3 of the settlement proposal allowed the Plaintiff to proceed against the guarantor; it reads: “Century shall be then be at liberty to take all necessary actions against Axisjaya including but not limited to enforcing the guarantee to recover the Debt together with interest and costs.”

(iv) fourthly, the subject matter of the Investment agreement from RM8,000,000 was transformed to 9 units of condominiums in the Settlement Agreement whereas in the present case, the sum of RM RM2,621,823.91 outstanding remained the same in the settlement proposal. [55] I agree with the Plaintiff’s counsel’s assertion that the Defendants’ reliance on the Huat Hing case is misconceived as the case in my opinion is clearly distinguishable. [56] For the reasons above, with respect, I am not persuaded by the Defendants’ argument that the Plaintiff’s claim is premature and was 40 compromised by the settlement proposal. In my view, the Plaintiff was being indulgent and has a right to be paid for the supply of the goods. Whether the 2nd Defendant’s obligation as a guarantor has been discharged following the settlement agreement (sic) between the Plaintiff and the 1st Defendant? [57] I have examined the Guarantee. I note that the Guarantee in Exhibit TFL-7 provided at Clause 2 that: “This Guarantee shall be a continuing guarantee to you (within the limits aforesaid) for the whole debt that shall be contracted by the Customer with you in respect of any credit facility given or goods and services supplied or to be supplied and delivered by you.“ [58] The above wording makes it unequivocal that the Guarantee is a continuing guarantee. [59] At page 309, in the Law of Banking Volume 2: Pledges, Guarantees and Letters of Credit (3rd. edn.) by Poh Chu Chai, the learned author opines: “A guarantee which is worded as a continuing guarantee is wide enough to cover the past as well as the future indebtedness of a principal debtor.” [60] The Plaintiff’s counsel submitted that:

The term Continuing Guarantee can be traced back to the Indian Contracts Act 1872 ('ICA'). According to Section 129 of the ICA, 41 “Continuing Guarantee” is defined as follows: ''A guarantee which extends to a series of transactions, is called a "continuing guarantee".

A, in consideration that B will employ C in collecting the rent of B's zamindari, promises B to be responsible, to the amount of 5,000 rupees, for the due collection and payment by C of those rents. This is a continuing guarantee.

A guarantees payment to B, a tea-dealer, to the amount of £100, for any tea he may from time to time supply to C. B supplies C with tea to above the value of £100, and C pays B for it. Afterwards, B supplies C with tea to the value of £200. C fails to pay. The guarantee given by A was a continuing guarantee and he is accordingly liable to B to the extent of £100.

A guarantees payment to B of the price of five sacks of flour to be delivered by B to C and to be paid for in a month. B delivers five sacks to C. C pays for them. Afterwards B delivers four sacks to C, which C does not pay for. The guarantee given by A was not a continuing guarantee, and accordingly he is not liable for the price of the four sacks."

(ii) In Malaysia, the term ‘continuing guarantee’ is defined in s. of the CA which mirrors s. 129 of lCA. S. 82 of CA reads: "A guarantee which extends to a series of transactions is called a "continuing guarantee". 42 Illustrations

A, in consideration that B will employ C in collecting the rent of B's estate, promises B to be responsible, to the amount of RM5,000, for the due collection and payment by C of those rents. This is a continuing guarantee.

A guarantees payment to B, a tea-dealer, to the amount of RM1,000 for any tea he may from time to time supply to C. B supplies C with tea to above the value of RM1,000, and C pays B for it. Afterwards, B supplies C with tea to the value of RM2.000. C fails to pay. The guarantee given by A was a continuing guarantee and he is accordingly liable to B to the extent of RM1.000.

A guarantees payment to B of the price of five sacks of flour to be delivered by B to C and to be paid for in a month. B delivers five sacks to C. C pays for them. Afterwards B delivers four sacks to C, which C does riot pay for. The guarantee given by A was not a continuing guarantee, and accordingly he is not liable for the price of the four sacks."

(iii) In the High Court of Madras case of National Small Industries Corp. Ltd., rep by its Regional General Manager v. Singh Printers, rep by its Present Proprietor Sri. Santhosh Kumar Nigam and Others [2013] 7 MLJ 612, Justice R.S Ramanathan explained the concept of a continuing guarantee in his grounds of judgment as follows: “11 To appreciate the contention of both the parties and to give a finding as regards the first point for consideration, we will have to see the provisions of section 129 of the Contract Act and also the deed of guarantee under Ex. A2 executed by the sixth defendant. 43 Continuing guarantee is defined in section 129 of the Contract Act and it has been held by a Division Bench of this court that whether a guarantee is a continuing guarantee or not is a question of intention of the parties as expressed by the language they have employed in the deed of guarantee. If the guarantee is construed as a continuing guarantee, then the guarantor is liable so long as the account is a live account and not settled and when there is no refusal on the part of the guarantor to carry out the obligation. Further, if the guarantee is construed as a continuing guarantee, then there is no question of limitation if the account is kept alive.” he further went on:

Section 129 of the Contract Act defines 'continuing guarantee and section 130 deals with revocation of continuing guarantee. As per section 129, the guarantee which exists to the series of transactions is called a continuing guarantee. Section 130 contemplates that a continuing guarantee, may at any time, be revoked by the surety as to future transactions by notice to the creditor. Therefore, by revoking a continuing guarantee, the guarantor is exonerated fully in respect of future transactions and in respect of transactions which had already taken place for which the guarantee was already taken, the guarantor is liable to pay the same. A Division Bench of this court in Indian Bank, 31, Rajaji Salai, Madras v. The State of Tamil Nadu and Others, (supra) dealt with the continuing guarantee and also the period of limitation in respect of continuing guarantee. In the said case, after referring to the wordings in the guarantee deeds, which are similar to the words employed in Ex. A2, the Division Bench held as follows: 44 "18. All the said three Deeds of Guarantee are read together make it clear that they are continuing guarantees and the undertaking by the defendants is to pay any amount that may be due by the mill. In the case of such a continuing guarantee. so long as the account is a live account in the sense that it is not settled fully and there is no refusal on the part of the guarantor to carry out the obligation ...”

(iv) Based on s. 82 of CA (and/or Section 129 of ICA) and the case of National Small Industries, it is trite that if a guarantee is a continuing guarantee, the liability of the guarantor (i.e. the 2nd Defendant) endures until the transactions or credits between the parties have been exhausted unless, the guarantee as to future transactions or credits is revoked by the guarantor pursuant to s. 83 of CA (and/or Section 130 of IAC).

In the present case, it is vital that Clauses 1 and 2 of the Guarantee to be read conjunctively. Clauses 1 and 2 of the Guarantee reads: “1. IN CONSIDERATION of you agreeing to supply goods and services and/or give credit to Axisjaya Sdn Bhd (Company No. 656023-H) ("Customer'? of Level 2, Gem In Mall, Mutiara Ville, Persiaran Sepang, Cyber 11, 6300 Cyberjaya, Selangor, we, Seri Mutiara Development Sdn Bhd (Company No. 865885- D), do hereby guarantee you the payment on demand of all monies due to you by the Customer which now are or shall at any time hereafter be owing to you by the Customer arising from or in connection with the said supply of goods and services and/or the giving of credit to the Customer as aforesaid at any time and from time to time PROVIDED ALWAYS THAT the total sum 45 recoverable from us under this Guarantee shall be limited to the sum of RM3,942, 676.67 (Ringgit Malaysia: Three Million Nine Hundred Forty Two Thousand Six Hundred Seventy Six and Sen Sixty Seven Only) for principal only together with GST, interest thereon and costs, charges and expenses incurred by you in enforcing this Guarantee and that the goods and services supplied are in accordance with Daikin Malaysia Sales & Service Sdn Bhd's Quotation No. 20411438 dated 12th March 2018 and Quotation No. 20411451 dated 6th March 2018.

This Guarantee shall be a continuing guarantee to you (within limits aforesaid) for the whole debt that shall be contracted by the Customer with you in respect of any credit facility given or goods and services supplied or to be supplied and delivered by you.” [61] S. 83 of the CA makes clear that a continuing guarantee may be revoked by the guarantor with notice. That section enacts as follows: “A continuing guarantee may at any time be revoked by the surety, as to future transactions, by notice to the creditor.” [62] On the material before the Court, I find no such revocation by the 2nd Defendant. I find that the 2nd Defendant has categorically by the continuing guarantee, guaranteed and undertook to pay all monies due and owing by the 1st Defendant arising from or in connection with the said supply of goods and services and/or the giving of credit to the 1st Defendant at any time limited to the sum of RM3,942,676.67 when it executed the Guarantees. The sum outstanding to the 1st Defendant is irrefutable as stated earlier. 46 [63] Not only that, clause 2 of the Guarantee, when read with clause 5 of the same Guarantee (which provides that “You shall be at liberty without discharging us from liability to grant time or any other indulgence to the Customer in respect of credit and/or goods and services supplied to the Customer and to accept payment from the Customer) makes it plain that until the whole debt is paid, and the Plaintiff is at liberty to grant time or other indulgence to the 1st Defendant, the 2nd Defendant is not discharged. In this case, the amount outstanding by the 1st Defendant guaranteed by the 2nd Defendant was payable by the 2nd Defendant simply upon a written demand being made by the Plaintiff. [64] As such, the 2nd settlement proposal in my view does not alter the fact that the outstanding sum, owed by the 1st Defendant is payable by the 2nd Defendant upon a written demand being made as stated earlier. [65] In Huat Hing’s case where the guarantee did not have clause 2 and 5 as in the present case, Wong Chee Lin J had dismissed the plaintiff's claim on the basis of Section 88 of CA: “[77] Section 88 of the Contracts Act 1950 provides: ''A contract between the creditor and the principal debtor, by which the creditor, makes a composition with, or promises to give time to, or not to sue, the principal debtor, discharges the surety, unless the surety assents to such contract." [78] Accordingly, it would appear that once the Settlement Agreement is entered into or agreed by all the parties, the guarantor is discharged and it does not matter that the Settlement Agreement was not carried out into effect. The remedy of the Plaintiff would be pursuant to the Settlement Agreement. In Sir David Foskett's The Law and Practice 47 of Compromise the effect of a settlement agreement is summarised as follows: Given the normal meaning, purpose and effect of a compromise, the natural inference is that the common intention of the parties is that the compromise will henceforth govern their legal relationship in connection with the disputes in which they had been engaged and that, accordingly, those disputes would still be regarded as “dead” even in the event of breach of the compromise. In the circumstances, it is submitted that recourse to the original claims will not be permitted. [79] On this basis, I would dismiss the Plaintiff’s claim.” [66] The Plaintiff ‘s counsel submitted that in the present case, Clause 5 of the Guarantee mirrors the guarantee provisions in the case Eon Bank Bhd v. Wasfahan Sdn Bhd & Ors [2010] 1 LNS 1886 and United Overseas Bank (Malaysia) Bhd v Vortex Dew(M) Sdn Bhd & Ors [2016]

In Eon Bank Bhd’s case, Supang Lian JC (now JCA) held that when a guarantee provides a consent to a variation of the original agreement between the creditor and principal-debtor, the guarantor is not discharged of its liability under the guarantee. In her grounds of judgment, Her Ladyship held as follows: - “[31] Learned counsel for the plaintiff contended that clause 7 of the Guarantee allows the plaintiff to vary any credit and to grant time or indulgence to the borrower. In any case, all the defendants had individually signed the plaintiff's letter of 3.8.2000 and thus 48 consented to the arrangement to extend the schedule of repayment. [32] Section 86 of the Contracts Act 1950 provides as follows: - ''Any variance, made without the surety's consent, in the terms of the contract between the principal debtor and the creditor, discharges the surety as to transactions subsequent to the variance." [33] This section was considered in Kidurong Land Sdn Bhd v Lim Gaik Hua [1990] 1 MLJ 485 where Lee Hun Hoe CJ stated thus at 493: - This section came up for construction in Citibank NA v Ooi Boon Leong [1981] 1 MLJ 282 where Raja Azlan Shah, then LP, observed as follows at p 283: - The section provides express provision for the respondents to consent to any variation. They are the sole judges whether or not they will consent to remain liable notwithstanding such variation, and that if they have not so consented they will be discharged, This provision is in accordance with what is stated to be the law by Cotton LJ in Holme v Brunskill (1878) 3 QBD which was followed by the Privy Council in National Bank of Nigeria Limited v Awolesi [1964] 1 WLR 1311 at p 1316: The true rule in my opinion is, that if there is any agreement between the principals with reference to the contract guaranteed, the surety ought to be consulted, and that if he has not consented to the alteration, although in cases where it is without inquiry evident that the alteration is unsubstantial, or that it 49 cannot be otherwise than beneficial to the surety, the surety may not be discharged; yet that if it is not self-evident that the alteration is unsubstantial, or one which cannot be prejudicial to the surety, the court will not, in an action against a surety, go into an inquiry as to the effect of the alteration... but will hold that in such a case the surety himself must be the sole judge whether or not he will consent to remain liable notwithstanding the alteration, and that if he has not so consented he will be discharged.' The onus of proving that the surety consented to the alterations of the contract is upon the party seeking to enforce the guarantee....Mere knowledge of the variation is insufficient. There must be consent to the variation, although implicit consent may be inferred." [34] Clearly then, the principle stated in section 86 and the authorities above is that variance without consent of the surety discharges the surety as to transactions subsequent to variation. Nonetheless. there are exceptions to the rule and in the following circumstances:

where it is without inquiry evident that the alteration is unsubstantial or one which cannot be prejudicial to the surety; or

where there was implied consent to the variation. [35] I did not find it difficult to conclude that guarantors there was implied consent of the guarantors to the variations. My reasons are these. I refer first to clause 7 of the Joint and Several Guarantee. It stipulates thus: 50 The Company may at all times without prejudice to this guarantee and without discharging or in any way affecting our liability hereunder and without notice to any of us:

determine vary or increase any credit to the customer;

grant to the customer or to any other person any time or indulgence;..." Every one of the 2nd to 7th defendants have agreed with and accepted the terms of clause 7. By this clause they have given their consent to the plaintiff to either vary any credit to the borrower (1st defendant) or to grant to the borrower any time or indulgence. Having agreed to this. the defendants are hardly in the position to say they have not consented to the variations and indulgence and time granted by the plaintiff to the 1st defendant through the 3 letters. The implicit consent of the defendants to the variations was to be inferred from them agreeing to and accepting the terms of clause 7. [38] For the reasons stated, I found that even if there was substantial variation, it was with the implied consent of the defendants as guarantors. Hence. there was no question of them being discharged as sureties on this account.”(emphasis added)

(ii) Similarly, in the case of United Overseas Bank (Malaysia) Bhd v Vortex Dew(M) Sdn Bhd & Ors [2016] 1 LNS 1186, Lau Bee Lan J (now JCA) held that when a guarantor consented to the granting of time and/or any other indulgence by the creditor to the principal-debtor, the guarantor is not 51 discharged of its liability under the guarantee: - [11] The 3rd Defendant contends that any variation to the agreement between the Plaintiff and 1st Defendant and indulgences granted by Plaintiff to the 1st Defendant discharge her from liability under the Joint Guarantee (para 13 of encl. 10) by virtue of ss.86 and 88 Contracts Act 1950. [12] The 2 aforesaid provisions are reproduced - "86. Discharge of surety by variance in terms of contract. Any variance, made without the surety's consent, in the terms of the contract between the principal debtor and the creditor, discharges the surety as to transactions subsequent to the variance". "88. Discharge of surety when creditor compounds with, gives time to, or agrees not to sue principal debtor. A contract between the creditor and the principal debtor, by which the creditor makes a composition with, or promises to give time to, or not to sue, the principal debtor, discharges the surety, unless the surety assents to such contract". [12.1] I find there is no merit in the 3rd Defendant's contention as clause 9 of the Joint Guarantee expressly provides - "... the Guarantee shall be without prejudice to and shall not be affected nor shall the 2nd and 3rd Defendants be released or exonerated by inter alia the following matters:

the variation exchange renewal release or modification of 52 any such securities or the refusal or neglect to complete enforce or assign any judgment specialty or other security or instrument negotiable or otherwise and whether satisfied by payment or not; or

any time given or extended to the 1st Defendant and/or any other person and the parties to any negotiable or other security instrument guarantee or contact or any other indulgence granted to or compromise composition or arrangement made with the 1st Defendant and/or any other person or persons whether with or without consent or notice to us ...".(emphasis added) [67] In Huat Hing’s case, I find Wong Chee Lin J in fact agreed that a mere forbearance to sue or gratuitous indulgence by the creditor does not discharge the guarantor of its liability under the guarantee: “[88] It is not material what form the giving of time by the creditor takes, so long as there is a legally binding and enforceable agreement by the creditor that he will suspend his rights against the principal. The agreement need not be in writing, nor of an express nature, but may be implied from the conduct of the creditor and the principal. However, the intention to vary the principal’s obligations must be unequivocal and mere forbearance to sue, or gratuitous indulgence by the creditor, is not sufficient. [89] It is provided in section 90 of the Contracts Act 1950 that: “Mere forbearance on the part of the creditor to sue the principal debtor or to enforce any other remedy against him does not, in the absence of any provision in the guarantee to the contrary, discharge the surety.” [90] I am of the view that in the present case, the 1st Defendant has not proved anything more than a gratuitous indulgence by the Plaintiff to give time to Dato’ Chew and the Plaintiff merely forbore to sue him. There was no binding contract 53 made for good consideration whereby the Plaintiff had agreed not to sue Dato’ Chew. At least, the 1st Defendant has not proved the existence of such a contract. I am also of the view that the Plaintiff had not agreed not to sue nor had the Plaintiff agreed to release Dato’ Chew. The Plaintiff said his agreement not to sue was only “temporary”. In the circumstances, I am of the view that the 1st Defendant is not discharged as guarantor by the giving of time and the forbearance from suing Dato’ Chew temporarily on the part of the Plaintiff.” (emphasis added) [68] Similarly in the present case, I am of the considered view that the Defendants have not proved anything more than a gratuitous indulgence by the Plaintiff to give time to the 1st Defendant. I am as such satisfied that the issues raised by the 1st and 2nd Defendants are unarguable. [69] The matter does not come to an end if the Defendants have not been able to raise any triable issue. I think it desirable at this juncture to ask the question, were they able to show there is “some other reason for trial” pursuant to Order 14 rules 3(1) and 4(1)? [70] The scope of the words "some other reason to be a trial" was considered in Miles v. Bull [1968] 3 All ER 632, page 637 to 638 where the Defendant and her husband had separated, but the former was in occupation of the matrimonial home which was sold by the husband to the Plaintiff. The Plaintiff then brought an action claiming possession of the property and applied for summary judgment. The master gave the Defendant unconditional leave to defend. The Plaintiff's appeal was dismissed. Megarry J found that nearly all the relevant facts were under the control of the Plaintiff and the Defendant would have to seek to elicit by discovery, interrogatories and cross-examination those facts which would assist her (the defendant). His Lordship reasoned that if the 54 Defendant could not point to a specific issue which ought to be tried, but nevertheless satisfied the court that there were circumstances that ought to be investigated, then the words "there ought for some reason to be a trial" would be invoked. At p. 637 and 638, his Lordship explained: “Under r. 3 and r. 4 of the present R.S.C., Ord. 14, the Defendant can obtain leave to defend if (and I read (13) from r. 3(1)) the Defendant satisfies the court "that there is an issue or question in dispute which ought to be tried or that there ought for some other reason to be a trial". These last words seem to me to be very wide. They also seem to me to have special significance where (as here) most or all of the relevant facts are under the control of the Plaintiff, and the Defendant would have to seek to elicit by discovery, interrogatories and cross-examination those which will aid her. If the Defendant cannot point to a specific issue which ought to be tried, but nevertheless satisfied the court that there are circumstances that ought to be investigated, then I think those concluding words are invoked. There are cases when the Plaintiff ought to be put to strict proof of his claim, and exposed to the full investigation possible at a trial; and in such cases it would, in my judgment, be wrong to enter summary judgment for the Plaintiff. In the present case the Plaintiff's evidence initially consisted of a single affidavit in which brevity could scarcely be carried further. He has now amplified this by further evidence, but this is certainly not exhaustive or conclusive. The words "there ought for some other reason to be a trial" seem to me to give the court adequate powers to confine R.S.C., Ord. 14, to being a good servant and prevent it from being a bad master. If I may adapt the language of LORD PARKER OF WADDINGTON in Daimler Co., Ltd v. Continental Tyre and Rubber Co. (Great Britain), Ltd. (14), referred to in the notes to R.S.C., Ord. 14, in THE SUPREME COURT PRACTICE 1967 (15), if the circumstances of the case are "such as to require close investigation", this will "preclude the propriety of giving leave to sign judgment under Ord. 14, r. 1". The question is thus whether this is such a case…. There is here a case for investigation, and so not for summary decision. 55 I also bear in mind what BRAMWELL, L.J., said in Harrison v. Bottenheim (16). Even on the old wording of R.S.C., Ord. 14, “though a man cannot show a defence, still, if he has shown enough to entitle him to interrogate the Plaintiff, the case is not within Ord. 14, and should not be pursued without his being allowed to defend.” (emphasis added) [71] Having considered all the circumstances of the case and the relevant evidence adduced and viewed against the background of the events that transpired prior to the present proceedings, despite defence counsel’s valiant attempt in defending the matter, regretfully, I am not able to find anything relied upon by the Defendants that this is a case within the category of what Megarry J had in mind in Miles v Bull (supra) to justify a trial. [72] In Malayan Insurance (M) Sdn Bhd v Asia Hotel Sdn Bhd [1987] 2 MLJ 183, the Supreme Court said at p. “The underlying philosophy in the Order 14 provision is to prevent a plaintiff clearly entitled to the money from being delayed his judgment where there is no fairly arguable defence to the claim. The provision should only be applied to cases where there is no reasonable doubt that the plaintiff is entitled to judgment. Order 14 is not intended to shut out a defendant. The jurisdiction should only be exercised in very clear cases.” [73] In Syed Ibrahim bin Syed Abdul Rahman v Liew Su Chin (f) [1984] 1 MLJ 160 Lee Hun Hoe CJ (Borneo) said at p 163: "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 56 evidence. Yet judges are expected in applying the test to be critical of the affidavit evidence which must on the face be at least plausible." [74] For the reasons I have given above, I think I can be absolved from blame if I did not delve in detail and address here each and every single argument and case authority submitted by the parties as I find it strictly unnecessary in arriving at my decision. I state this formally for the avoidance of doubt. [75] In my judgment, this is not a complicated case that can only be properly proved by oral evidence. 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. I have no reasonable doubt at all that the Plaintiff is entitled to judgment. [76] As such, the application by the Plaintiff in enc. 8 for summary judgment is allowed with costs of RM7,500 against each Defendant subject to allocator. Dated 19th November 2020 - sgd - Liza Chan Sow Keng Judicial Commissioner High Court of Malaya at Kuala Lumpur 57 COUNSEL: For the Plaintiff : Brian Foong and Muhammad Hiqmar (Messrs. Chooi & Company + Cheang & Ariff) For the Defendants : Datuk Selva Kumar and Chow Hoi Meng (Messrs. Selva Mookiah & Associates) CASES REFERRED: HSBC Bank Malaysia Bhd v. Ng Tien Beng & Ors [2008] 9 CLJ 631 Noh Hyoung Seok v Perwira Affin Bank Bhd [2004] 2 MLJ 203 Huat Hing Rubberwood Sdn Bhd v Goodnite Sdn Bhd & Ors [2018] 1 LNS 1770, [2018] MLJU 1650 Huat Hing Rubberwood Sdn Bhd v Goodnite Sdn Bhd & Ors [2019] 1 LNS

(O) 11 National Company For Foreign Trade vs. Kayu Raya Sdn Bhd [1984] 2 MLJ 300 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 Jacobs v. Booth Distillery Co. [1901] 85 LT 262 Southern Finance Bhd v. Sun City Development Sdn Bhd & Anor [2006] 7 CLJ 464 58 Citibank NA v. Ooi Boon Leong [1981] 1 MLJ 282 Chen Heng Ping & Ors v Intradagang Merchant Bankers (M) Bhd [1995] 2 AMR 1655; [1995] 2 MLJ 363 John Wallingford v The Directors of the Mutual Society and the Official Liquidator (1880) 5 AC 685 PERNAS TRADING SDN BHD v PERSATUAN PELADANG BAKTI MELAKA [1979] 2 MLJ 124 Orion Integrated Sdn Bhd v PFC Engineering Sdn Bhd [2014] 9 MLJ 695 Caltex Oil Malaysia Ltd v Classic Best Sdn Bhd & Ors [2007] 4 MLJ 772 PERANGSANG DAGANG SDN BHD v. TANJUNG TERAS SDN BHD & ORS [2008] 2 CLJ 199 Woon Hoe Kan & Sons Sdn Bhd v Bandar Raya Developments Bhd [1974] 1 MLJ 24 Boustead Trading Sdn Bhd –v-Arab-Malaysian Merchant Bank Berhad [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 WONG HON LEONG DAVID v NOORAZMAN BIN ADNAN [1995] 3 MLJ 283 RAINBOW ENTERPRISE CO LTD v. HMD AUTOMOBILE SDN BHD [2014] 1 LNS 1194, [2015] MLJU 894 Ling Hock Ling v Tai Lian Development Co [2006] 6 MLJ 712 59 DREAM PROPERTY SDN BHD v. ATLAS HOUSING SDN BHD [2015] 2 CLJ 453 RHB Bank Berhad v Unijaya Teknologi [2016] 1 LNS 1001 KGN Jaya Sdn Bhd vs. Pan Reliance Sdn Bhd [1996] 1 MLJ 233 National Small Industries Corp. Ltd., rep by its Regional General Manager v. Singh Printers, rep by its Present Proprietor Sri. Santhosh Kumar Nigam and Others [2013] 7 MLJ 612 Eon Bank Bhd v. Wasfahan Sdn Bhd & Ors [2010] 1 LNS 1886 United Overseas Bank (Malaysia) Bhd v Vortex Dew(M) Sdn Bhd & Ors [2016] 1 LNS 1186 Miles v. Bull [1968] 3 All ER 632 Malayan Insurance (M) Sdn Bhd v Asia Hotel Sdn Bhd [1987] 2 MLJ 183 Syed Ibrahim bin Syed Abdul Rahman v Liew Su Chin (f) [1984] 1 MLJ 160 STATUTE/LEGISLATION REFERRED: Order 14 Rule 1(1), Rule 3 (1) and 4(1) of the Rules of Court 2012 Contracts Act 1950, s. 40, s. 82, s. 83, s. 88, s. s. 129 of the Indian Contracts Act