He appeared before the Sessions Court to record the 3rd CO. He also signed the draft 3rd CO to perfect it. (This means that D agreed to the terms and effect of paragraph 6 of the 3rd CO.) PARAGRAPH 6 OF THE 3RD CO CAN BE CONSTRUED WITHOUT A TRIAL [24] These are the words of paragraph 6 of the 3rd CO that D agreed to— “that ZUIHAIMI BIN ISMAIL (No. KP 661125-07-5005) gives a personal guarantee that the amounts stated in this Order will be paid by the Defendant (GMP) within the time given to pay them (bahawa ZUIHAIMI BIN ISMAIL (No. KP 661125-07-5005) memberi jaminan peribadi bahawa amaun-amaun yang dinyatakan dalam perintah ini akan dibayar oleh DEFENDAN pada masa yang ditetapkan)”. [25] I find that paragraph 6 of the 3rd CO is sufficiently clear and unambiguous, such that it can be construed without the need for a trial of the suit. S/N mWxpvhRndU2zvi7ylDCmlQ Page 16 of 20 THE QUESTION POSED BY P IN ITS ORDER 14A APPLICATION [26] The question that P poses in P’s Order 14A Application, which P asserts will finally determine this suit, is: whether paragraph 6 of the 3rd CO creates a contract of guarantee under section 79 of the Contracts Act 1950 between P as creditor, D as guarantor (surety) and GMP as the principal debtor? [27] I find that answering this question of law and construction of paragraph 6 of the 3rd CO would finally determine this suit, because—if the answer is Yes, then D owes P RM1.74 million, with interest as prayed for in the Statement Of Claim, and a judgment against D can be entered accordingly. [28] If, on the other hand, the answer is No, then D does not owe P the money claimed, and P’s suit can be accordingly dismissed. THE ANSWER TO THE QUESTION POSED [29] My answer to the question posed by P in P’s Order 14A Application is Yes, paragraph 6 creates a contract of guarantee under section 79 of the Contracts Act 1950 between P (as creditor), D (as guarantor), and GMP (as principal debtor). These are my reasons. [30] One—the undisputed (agreed) facts set out above, namely D gave a guarantee to P to pay the balance outstanding in the judgment sum if GMP defaults in paying it. [31] Two—I am of the view that paragraph 6 of the 3rd CO creates a guarantee by D to pay P GMP’s judgment debt under the 3rd CO. The terms of a consent judgment or consent order are akin to the terms of a S/N mWxpvhRndU2zvi7ylDCmlQ Page 17 of 20 contract between the parties. The parties are bound by the terms of a consent judgment or consent order, and “the Court is duty bound to enforce the agreed terms” contained in it—Abdul Razak Sheikh Mahmood & Ors v Amanah Raya Berhad & Ors And Another Appeal [2018] 5 MLJ 125 (CA); [2018] 5 CLJ 273; [2018] 3 MLRA 529; [2018] AMEJ 0030. [32] Three—although D was not a party to Suit 15 where the 1st CJ was entered, D’s guarantee was the consideration for P to restructure the payment of the balance of the judgment sum for GMP to pay. [33] I find that under sections 79, 80, and 81 of the Contracts Act 1950, a contract of guarantee was created between P as creditor, D as guarantor, and GMP as the principal debtor whose debt D (as guarantor) must pay. The consideration for D to give the guarantee was the restructuring of GMP’s obligation to pay P the balance outstanding judgment sum. And D’s liability to pay, as the guarantor, co-exists with GMP’s liability to pay, as the principal judgment debtor—Chan Shek Hoh & Anor v Emzie Luba Services Sdn Bhd & Anor [2009] 8 MLJ 757 (HC); [2009] AMEJ 0077; [2009] CLJU 541; [2009] 9 MLRH 400—where the facts are similar and the High Court applied the definition of a contract of guarantee as set out in section 79. DEALING WITH D’s ARGUMENTS [34] First, D submits that this Suit (and P’s Order 14A Application) is no longer necessary because P has already filed committal proceedings against GMP, to enforce the 3rd CO. [35] I find that this argument is not cogent. D is not a party in Suit 15, where the 1st CJ was recorded. D was not obligated and hence not liable S/N mWxpvhRndU2zvi7ylDCmlQ Page 18 of 20 to pay P the judgment sum recorded in Suit 15. However, under the 3rd CO, D guaranteed GMP’s payment of the balance outstanding judgment sum. This gave P a cause against D. P sues D for the guarantee that he made in the terms of paragraph 6 of the 3rd CO. P’s Order 14A Application poses a question that seeks an answer from the Court that the 3rd CO constitutes a contract of guarantee for D to pay P what GMP owes P. The question is suitably posed, and the answer finally determines the suit without the need for a trial. [36] Second, D argues that the parties never intended to create a guarantee, or that D never intended to give a guarantee. D also argues that the 3rd CO does not contain words that make D liable to pay GMP’s judgment debt to P. [37] On both scores, I find D’s argument untenable. Paragraph 6 of the 3rd CO is unambiguous in its terms. It provides that D gives a personal guarantee for the amounts that GMP is liable to pay P within the time limit to pay. It is nothing short of D promising to pay GMP’s debt to P under the 3rd CO. [38] Further, if paragraph 6 does not create in D a liability to pay P if GMP defaults in paying the judgment sum to P, then there is effectively no value to the terms of paragraph 6. There would have been no need and no reason to include paragraph 6 in the terms of the 3rd CO at all. [39] Fourth—D argues that paragraph 6 merely creates an obligation to guarantee that GMP pays the judgment sum, but does not create an obligation to actually pay the judgment sum on behalf of GMP. S/N mWxpvhRndU2zvi7ylDCmlQ Page 19 of 20 [40] I find that this is an argument about a non-existent distinction. The words of paragraph 6 do not create an obligation to give a guarantee. The words of paragraph 6 straightaway create a guarantee. D gave a guarantee that he would pay GMP’s judgment debt to P. D made a promise to pay GMP’s debt if GMP failed to pay it. And so if GMP fails to pay P the judgment sum, D is liable to pay it. THE RESULTANT JUDGMENT OR ORDER THAT SHOULD BE MADE [41] For these reasons, I find that the question posed in P’s Order 14A Application is a suitable question to ask for determination. I find that the facts that are necessary to answer the question posed are undisputed and indisputable. And I find that answering the question posed will finally determine P’s entire claim against D without the need for a trial. [42] I answer the question posed in favour of P and against D. [43] I order that P is at liberty to apply for judgment to be entered against D according to P’s prayers in the Statement Of Claim. [44] As for costs, I order D to pay P costs of RM7K by 9.9.2024. Costs are subject to the allocatur. Dated: 30 October 2024 KENNETH ST JAMES Judicial Commissioner Penang High Court S/N mWxpvhRndU2zvi7ylDCmlQ Page 20 of 20 Counsel/Solicitors: For the Plaintiff – Shamser Singh Thind [Messrs SS Thind (Ayer Itam)] For the Defendant – Farhan Alia Ahmed Othman [Messrs Zulhaimi & Co. (Butterworth)] Legislation referred to: