Fuji Xerox Asia Pacific Pte Ltd v 1. ) Bumi Xerox Sdn Bhd (KA-22NCvC-104-09/2018)

Bumi Xerox Sdn Bhd (No. Perniagaan : 1021348-W)

Rohana binti Ahmad (No. K/P : 681107-02-5088)

Tunku Johanez bin Tunku Annuar (No. K/P : 670929-10-5808)

Mohd Adri bin Zulkipli (No. K/P : 830124-02-6089) --- Defendan-Defendan 24/06/2025 17:01:24 KA-22NCvC-104-09/2018 Kand. 205 GROUNDS OF JUDGMENT A. INTRODUCTION [1] These are the grounds of judgment in respect of the Plaintiff’s consolidated claims in the following suits:

Suit No: KA-22NCvC-104-09/2018 (“Suit 104”);

Suit No: KA-22NCvC-52-09/2018 (“Suit 52”);

Suit No: KA-22NCvC-53-09/2018 (“Suit 53”); and

Suit No: KA-22NCvC-55-09/2018 (“Suit 55”). [2] By Order dated 10.8.2020, all four suits were ordered to be consolidated and heard together, with Suit 104 designated as the main suit. The consolidated trial proceeded over four days 1.11.2022,

20.6.2023, 21.6.2023, and 24.7.2023. [3] This Court allowed the Plaintiff’s claims in all four suits, with costs. Dissatisfied with the decision, one of the Defendants, the 4th Defendant, filed an appeal. Hence, this Grounds of Judgment is prepared. B. BACKGROUND FACTS [4] The Plaintiff’s claims arise from the 1st Defendant’s failure to pay rental and meter usage invoices under several Rental and Service Agreements (“the Agreements”) for the lease and service of photocopying equipment and/or software (“the Equipment”). These agreements were further supported by written Guarantees executed by the 2nd to 4th Defendants, each of whom acted as guarantors for the 1st Defendant’s obligations. Agreed Facts [5] The material facts in all four suits were largely undisputed and recorded in the Statement of Agreed Facts and summarised as follows:

The Plaintiff is a company incorporated in Singapore and registered in Malaysia, with its registered address and headquarters at Level 23A, Menara Binjai, No. 2, Jalan Binjai, 50450 Kuala Lumpur.

The 1st Defendant is a company incorporated in Malaysia with a registered address at No. 179, Level 1, Kompleks Sultan Abdul Halim Fasa 2, Jalan Pegawai, 05050 Alor Setar, Kedah. It also operates from, or has business premises at, several other addresses in Kedah and Perlis, namely: i. No. 21, Ground Floor, Kompleks Perniagaan Jelatek, KM3 Jalan Langgar, 05460 Alor Setar, Kedah; ii. No. 1 & 2, Kompleks Niaga PKENPS, Jalan Raja Syed Alwi, 01000 Kangar, Perlis; iii. No. 180, Tingkat 2, Kompleks Sultan Abdul Halim Fasa 2, Jalan Pegawai, 05050 Alor Setar, Kedah; iv. No. 2, Block A, Kompleks Niaga PKENPS, Jalan Raja Syed Alwi, 01000 Kangar, Perlis; and v. No. 11, Tingkat 1, Kompleks Perniagaan Jelatek, KM3 Jalan Langgar, 05460 Alor Setar, Kedah.

The 2nd Defendant is a guarantor of the 1st Defendant.

The 3rd Defendant is also a guarantor of the 1st Defendant.

The 4th Defendant is a guarantor of the 1st Defendant. Issues to be Tried [6] The parties have agreed that the issues for determination in all four suits are similar and may be summarised as follows:

Whether the 1st Defendant is liable to the Plaintiff for the outstanding amounts claimed under the accounts, as pleaded in the Amended Writs and Amended Statements of Claim, and arising from the Agreements?

Whether the 2nd, 3rd and 4th Defendants, in their respective capacities as guarantors of the 1st Defendant, are jointly and severally liable for the said outstanding amounts under the Agreements?

Whether the Plaintiff is entitled to collect Goods and Services Tax (GST) from the 1st Defendant during the Tax Holiday period?

Whether the Plaintiff is entitled to claim monthly rental charges after termination of the Agreements, in circumstances where the Equipment was no longer in service?

Whether the Plaintiff is entitled to claim six (6) months’ rental as compensation for the non-return of Equipment by the 1st Defendant? [7] At the outset, the Court notes that the various agreements entered into between the Plaintiff and the 1st Defendant in respect of the rental and servicing of the Equipment are listed and described in Appendix 1 of the Plaintiff’s Bundle of Documents. Material Terms of the Agreements [8] The Court considers it necessary to summarise the material terms of the relevant agreements, which are undisputed and identical across the four suits.

Rental Agreements The key terms of the Rental Agreements entered into between the Plaintiff and the 1st Defendant are as follows: i. Schedule – stipulates the rental commencement date, the rental payment due date, and the minimum contract period. ii. Clause 1 (Term) – provides for the agreed minimum rental period. iii. Clause 2 (Return of Equipment/Licensed Software/Third Party Software) – imposes a contractual obligation on the 1st Defendant to either return the Equipment or make it available for the Plaintiff’s repossession upon termination. iv. Clause 5 (Customer’s Obligations) – outlines the 1st Defendant’s obligations, including the obligation to pay the initial payment, monthly rental for the minimum period, and GST (if applicable). v. Clause 7 (Termination) – grants the Plaintiff the right to terminate the agreement and to enforce its post-termination remedies upon default. vi. Clause 8 (Service of Process) – provides that service of cause papers by registered post is deemed effective seven (7) days from the date of posting. vii. Clause 9 (Waiver and Consent) – stipulates that any delay or failure by the Plaintiff to enforce its rights does not amount to a waiver. viii. Clause 11 (Entire Agreement) – provides that the agreement constitutes the entire agreement between the parties. ix. Appendix 1 – details the Equipment ordered and the installation addresses as provided by the 1st Defendant.

Service Agreements The 1st Defendant also entered into Service Agreements with the Plaintiff for meter-based usage of the Equipment and related maintenance services. The material terms include: i. Clause 1 – stipulates the minimum period for service obligations. ii. Clause 5 – requires the 1st Defendant to pay for service and maintenance charges based on usage. iii. Clause 6 – deals with liability for ancillary charges. iv. Clause 9 – provides for termination rights and remedies of the Plaintiff. v. Clause 10 – deems service by registered post as effective seven (7) days from posting. vi. Clause 12 – entire agreement clause. vii. Appendix A – specifies the type of Equipment and installation addresses.

Guarantees by the 2nd, 3rd and 4th Defendants In consideration of the Plaintiff entering into the above agreements with the 1st Defendant, the 2nd, 3rd, and 4th Defendants executed Guarantees in favour of the Plaintiff. The salient terms of the Guarantees are as follows: i. Clause 1 – The guarantors jointly and severally, irrevocably and unconditionally: • (Clause 1.1) undertake to pay on demand all sums due or remaining unpaid by the 1st Defendant, including interest; • (Clause 1.2) guarantee the performance of the 1st Defendant’s obligations; • (Clause 1.3) indemnify the Plaintiff for any loss, expense, or damage suffered from non-performance by the 1st Defendant; • (Clause 1.4) assume liability as principal debtors, not merely as sureties. ii. Clause 2 – Provides that the Guarantees remain valid notwithstanding: • (Clause 2.1) any change in the constitution of the 1st Defendant (e.g., winding-up); • (Clause 2.8) the 1st Defendant ceasing to be legally liable to discharge its obligations. iii. Clause 12 – The guarantors agree to make payment on demand even where the Plaintiff is unable to recover the liabilities due to any legal limitation, illegality, disability, or incapacity of the 1st Defendant. [9] These terms are binding on the parties, and there was no credible evidence adduced by the Defendants to challenge their enforceability. Performance and breach of obligations [10] Pursuant to the Agreements, the Plaintiff duly delivered the Equipment to the installation addresses specified by the 1st Defendant in the relevant appendices to the agreements. There is no dispute that the Equipment was received and installed accordingly. [11] The Plaintiff’s records, corroborated by the testimony of witnesses and the documentary evidence, show that the 1st Defendant utilised and benefited from the use of the Equipment throughout the rental period. [12] In accordance with Clause 8 of the Rental Agreements and Clause 10 of the Service Agreements, the Plaintiff regularly issued rental and meter usage invoices to the 1st Defendant by way of registered post. The invoices provided a 60-day window for payment. [13] Each invoice stated the following notice: “Kindly highlight any discrepancy in writing within 14 days from date of this invoice; otherwise this invoice shall be deemed to be correct. Payment is due and payable pursuant to the terms and conditions of the agreement. Penalty for late payment will be charged at 0.04% per day on overdue balance from due date till full settlement.” [14] Notably, the 1st Defendant did not raise any objections, at the earliest opportunity or subsequently, regarding either the receipt or quantum of the invoices. Default in Payment [15] The 1st Defendant failed to make payments for the invoices despite reminders issued by the Plaintiff. This constituted an event of default under the Agreements. [16] The Court notes that DW-2, a witness for the Defendants, admitted during trial that the 1st Defendant had indeed defaulted on the payments due under the Agreements. Termination and Demand [17] As a consequence of the default, the Plaintiff exercised its contractual right to terminate the Agreements and issued multiple termination and demand letters to the 1st Defendant. These communications were not disputed or responded to by the 1st Defendant. [18] In all instances, the 1st Defendant failed to respond to the termination and demand letters, nor did it dispute the validity or correctness of the amounts demanded. C. ANALYSIS AND FINDINGS OF THE COURT [19] Before the Court proceeds on the findings on merits, it is noted that in the Defendants’ defence, the Defendants submitted that the Agreements, Guarantees, Invoices, Statements of Account, Letters of Termination, and Letters of Demand are inadmissible hearsay as their makers were not called to testify in court. [20] However, on the issue of inadmissibility of those documents being put under Part B Documents, the Plaintiff replied by stating that the Defendants’ contention is misconceived as the documents were duly marked as Part B in the Common Bundle, meaning their authenticity is not disputed pursuant to Order 34 Rule 2(2)(e) of the Rules of Court 2012 (“ROC 2012”). Under subsection 58(1) of the Evidence Act 1950, facts and, by extension, documents admitted need not be proved. [21] Hence, the Plaintiff submits that there is no requirement for the makers of the documents to be called, in the absence of allegations such as fraud, forgery or fabrication. [22] The Plaintiff submits that it has discharged its burden under section 101 of the Evidence Act 1950 by producing the relevant documents and calling witnesses to establish the Defendants’ liabilities. [23] At this juncture, the Court finds that the contentions advanced by the Defendants are without merit. On the admissibility of documents and hearsay allegation the Court finds this argument to be misconceived. It is undisputed that these documents were marked as Part B in the Common Agreed Bundle of Documents. In accordance with Order 34 Rule 2(2)(e) of the ROC 2012, Part B documents are those in respect of which authenticity is not disputed, although the contents may be disputed. Accordingly, their inclusion in Part B denotes an admission as to their authenticity. [24] Having said on that issue, and having heard the Plaintiff’s claim, the Defendant’s defence and both parties' respective submissions, the Court shall now analyse the merits of the Plaintiff’s claim and proceed to determine the substantive merits of the dispute. ANALYSIS ON THE EFFECT OF DISSOLUTION OF THE 1ST DEFENDANT AND THE CONTINUING LIABILITY OF THE GUARANTORS

Effect of Striking Off – No Locus Standi of 1st Defendant [25] It is not disputed that the 1st Defendant has been struck off the register of companies maintained by the Companies Commission of Malaysia and is therefore dissolved pursuant to subsection 554(1) of the Companies Act 2016. [26] Subsection 554(1) provides that upon being struck off, a company is dissolved, but the liabilities of its directors, officers, and members continue and may be enforced as if the company had not been dissolved. However, the company itself no longer exists in law and has no capacity to commence or defend any legal action. [27] The Court refers to the case submitted by the Plaintiff where the legal position was affirmed in Lee Kwee Foh Sdn Bhd v Pentadbir Tanah Daerah Batang Padang [2018] MLJU 1583. In this case, the court held that a struck-off company had ceased to exist and lacked locus standi to litigate. [28] This Court accepts the testimony of DW-1 and DW-2 that the 1st Defendant has been struck off. Accordingly, the Court finds that the 1st Defendant no longer has locus standi to defend this action and is deemed dissolved. Nevertheless, the effect of such dissolution does not extend to exonerating the personal liability of the 2nd, 3rd, and 4th Defendants as guarantors.

Liability of the 2nd to 4th Defendants under the Guarantees [29] From the facts of the case, the 2nd to 4th Defendants executed Continuing Guarantees in favour of the Plaintiff, the terms of which unequivocally bind them to the payment obligations of the 1st Defendant under the Agreements. [30] The Court accepts the legal principle that a guarantor’s liability arises at the time of execution of the guarantee, as set out in Majlis Amanah Rakyat v Ismail bin Maskor & Ors [2006] 3 MLJ 281, where the court held that a guarantor is bound by the guarantee once executed, irrespective of subsequent developments affecting the principal debtor. [31] More pertinently, in the authority forwarded by the Plaintiff in Affin Bank Bhd v Goh Hock Hai [2012] MLJU 1528, it was held that a guarantor may be made liable “as if he were a principal debtor” where recovery from the principal debtor is barred by any legal limitation, disability, or incapacity. The court interpreted such clauses as preserving the creditor’s right to enforce the debt directly against the guarantor, notwithstanding the dissolution, liquidation, or winding up of the principal borrower. [32] The terms of the Guarantees in the present case mirror those in the authorities cited. Specifically, Clause 1.4 and Clause 12 of the Guarantees provide that the guarantors are liable as principal debtors and undertake to pay all amounts due by the 1st Defendant to the Plaintiff, even in circumstances where legal limitations may render recovery against the principal borrower impossible. [33] In this case, the Plaintiff has issued valid demands to the 2nd, 3rd, and 4th Defendants, and the debt has been proven on a balance of probabilities. Therefore, the Court finds that the 2nd to 4th Defendants are jointly and severally liable for the outstanding sums owing under the Agreements as claimed in Suit 104, Suit 52, Suit 53, and Suit 55. ANALYSIS ON THE ENFORCEABILITY OF THE AGREEMENTS AND GUARANTEES

Guarantor Liability Continues Despite Dissolution of Principal [34] It is undisputed that the 2nd to 4th Defendants had respectively executed the Guarantees in favour of the Plaintiff. As correctly submitted, their liability arose upon execution of the said Guarantees. Clause 1.4 of each Guarantee expressly provides that the 2nd to 4th Defendants have agreed to guarantee and indemnify the Plaintiff as principal debtors, not merely as sureties. [35] The relevant clauses, particularly Clause 1.4, Clause 2.1, and Clause 12, clearly stipulate that the guarantors’ obligations subsist irrespective of any legal limitation or incapacity of the 1st Defendant. Such clauses mirror those considered in Affin Bank Bhd v Goh Hock Hai [2012] MLJU 1528, where it was held that the liability of a guarantor is enforceable even where legal limitations, such as winding up or dissolution, affect the principal borrower. [36] Accordingly, this Court finds that the 2nd to 4th Defendants remain liable as principal debtors for the outstanding amounts due under the Agreements, notwithstanding the dissolution of the 1st Defendant.

Enforceability of the Agreements Executed by the Defendants [37] The Agreements, as well as the Guarantees, are valid contracts within the meaning of the Contracts Act 1950, and binding upon the parties who have voluntarily executed them. Subsection 38(1) of the Act mandates that contracting parties must perform their respective promises unless excused under the Act or any other law. [38] In Press Metal Sarawak Sdn Bhd v Etiqa Takaful Bhd [2016] 5 MLJ 417, the Federal Court reaffirmed the principle that a party who signs a contract is bound by its terms, including those incorporated by reference, regardless of whether the party actually read or appreciated them. Such reference extends to other documents like appendices and standard terms. [39] The Federal Court in Yam Kong Seng & Anor v Yee Weng Kai [2014] 4 MLJ 478 also emphasized the evidentiary and binding nature of a party's signature on a document, while in Lin Wen Chih & Anor v Mycom Berhad [2014] 3 MLJ 691, the Court of Appeal stressed that a party is estopped from denying liability arising from documents duly signed by them. [40] In the present case, the 1st Defendant signed the Agreements, and the 2nd to 4th Defendants signed the Guarantees, all of which contain clear, enforceable obligations. No evidence was led to show any vitiating factors such as fraud, coercion, misrepresentation, or mistake. Consequently, the parties are bound by the Agreements they voluntarily entered into. [41] The execution of the Agreements by the 1st Defendant is not in dispute. This was expressly admitted by DW-2, Abdul Wahab, during trial, who confirmed that he signed the said agreements on behalf of the 1st Defendant and acknowledged that the company agreed to be bound by the terms therein. [42] The 3rd Defendant, DW-1, also admitted under cross-examination that he executed the Guarantees in favour of the Plaintiff and that he agreed to be bound by the terms stated therein, including the clause that renders him liable as a principal debtor. [43] Similarly, the 2nd and 4th Defendants, through their pleadings in the Re-Amended Defence, admitted to having executed the Guarantees. There is therefore no factual dispute as to the existence and execution of the Guarantees by all three individual Defendants. [44] Furthermore, it is noteworthy that none of the Defendants dispute the substantive terms of the Agreements, including:

the rental commencement dates,

the minimum contractual periods, and

the agreed payment dates for the monthly charges. [45] This was further confirmed during DW-1’s oral testimony on 21.6.2023 and in DW-2’s witness statement, where no challenge was made to the agreed rental or service fees or to the contractual mechanisms for invoicing and payment. [46] The Court also notes that the Plaintiff issued invoices for rental and service usage pursuant to the Agreements. These invoices were sent in accordance with the contractual terms and were not challenged or disputed by the 1st Defendant within the timeframe stipulated, i.e 14 days, as evidenced in Appendix 3. In fact, DW-2’s purported justification for non-payment lacks credibility and was not supported by any contemporaneous objection, correspondence, or complaint. [47] The Defendants did not produce any documentary evidence or cogent explanation to refute the correctness of the invoiced amounts or to prove that the Plaintiff failed to deliver the equipment or services contracted for. On the contrary, the Plaintiff’s records show full delivery and usage of the Equipment, and the Defendants’ silence or inaction in the face of repeated demands and termination notices is telling. [48] The Plaintiff’s claims under the Agreements are therefore proven on a balance of probabilities. The invoiced amounts remain unpaid, and no valid contractual or legal defence has been established to defeat the Plaintiff’s entitlements under the Agreements. [49] The Court also notes that the Defendants were fully aware of the contractual consequences of non-payment and early termination. In fact, the 1st Defendant itself issued a letter to the Plaintiff requesting termination of the Agreements, which reinforces the position that the Defendants had actual knowledge of the termination provisions and the resultant liabilities, including the contractual provision allowing the Plaintiff to claim further rental for non-return of equipment and loss of use.

The Guarantors Are Liable to Pay the Plaintiff on Demand [50] The legal position concerning a guarantor’s liability to pay upon demand is trite and well-established. Where the terms of a guarantee expressly stipulate that payment is to be made "on demand," such demand constitutes a condition precedent to the right of enforcement against the guarantor. [51] In Mok Hin Wah & Ors v United Malayan Banking Corp Bhd [1987] 2 MLJ 610, the Supreme Court at p. 611 held that in cases where the guarantee provides for payment “on demand,” a valid demand is a necessary precondition before legal action can be initiated. The Court observed: “Since bank guarantees invariably specify that the liability of the guarantor is to pay on demand, the words are not devoid of meaning or effect but make the demand a condition precedent to suing the guarantor.” [52] This principle was reaffirmed by the Supreme Court in Amanah Merchant Bank Bhd v Lim Tow Choon [1994] 1 MLJ 413, where it was held that where the guarantee contains a deemed service clause, proper posting in accordance with the terms of the guarantee suffices to establish service. At p. 419, the Court stated: “Once these facts have been established, the deeming provision will inevitably apply… it is sufficient to prove service of the notice of demand by sending it through the post in an envelope addressed to the last known place of address of the defendant…” [53] Clause 13 of the Guarantees executed by the 2nd to 4th Defendants contains a deemed service provision which provides that any demand or legal process served by prepaid registered or ordinary post to the Guarantors’ last known address shall be deemed served on the fifth (5th) day following the date of posting, notwithstanding any return of the documents by the postal authorities. [54] In accordance with this clause, the Plaintiff sent the respective demand letters to the 2nd to 4th Defendants at their last known addresses, as set out below. The Court accepts the Plaintiff’s evidence, including proof of posting, and finds that the service of demands was properly effected in accordance with Clause 13 of the Guarantees. [55] During the trial, the 3rd Defendant confirmed that the address stated in his Continuing Guarantee & Indemnity corresponds with his NRIC address. The same applies to the 2nd and 4th Defendants, as acknowledged in the Statement of Agreed Facts. There is therefore no genuine dispute as to the validity of the addresses used for service. [56] The Court finds that the Plaintiff has successfully discharged its burden of proving that demand letters were duly issued and served on the Guarantors in accordance with the express terms of the Guarantees. Accordingly, the condition precedent for enforcement against the 2nd to 4th Defendants has been fulfilled.

The guarantors had failed to show any manifest error, and the statement of account serves as conclusive evidence [57] In Cempaka Finance Bhd v Ho Lai Ying & Anor [2006] 2 MLJ 685, the Federal Court held that a certificate or statement of indebtedness operates in the realm of adjectival law. It relieves the Plaintiff from the burden of proving the debt in the first instance, and instead shifts the evidential burden to the Defendant to disprove the quantum of indebtedness. The Court stated: “A certificate of indebtedness operates in the field of adjectival law. It excuses the plaintiff from adducing proof of debt. Such a certificate shifts the burden onto the defendant to disprove the amount claimed.” [58] Similarly, in Goh Kong Hong v Bank Perusahaan Kecil & Sederhana Malaysia Berhad (formerly known as Bank Industri & Teknologi Malaysia Berhad) [2010] MLJU 1254, the High Court held that where the defendant failed to produce any evidence to rebut or identify any error in the statement of account produced by the plaintiff, the court was entitled to rely on the statement of account as conclusive evidence of the outstanding amount. [59] In the present case, Clause 4 of the Guarantees provides that: “A statement signed by Fuji Xerox’s managers, officers or executives as to the moneys and liabilities for the time being due or incurred to Fuji Xerox from or by the Obligor shall be final and conclusive evidence against the Guarantor(s) for all purposes including legal proceedings.” [60] The Plaintiff adduced the Statements of Account for each of the four suits during the trial. The Court notes that no evidence was led by the 2nd to 4th Defendants to show that any of the Statements of Account were inaccurate or tainted by manifest error. No alternative calculations were offered, nor was any cross-examination conducted to meaningfully challenge the amounts stated therein. [61] The Plaintiff’s witness, PW-2 had, through her Witness Statement, clearly explained the method of calculation and the derivation of the outstanding sums, which applied uniformly across all four suits. The evidence was coherent, consistent and unshaken under cross-examination. [62] As there was no rebuttal evidence or indication of any manifest error in the Statements of Account, the Court is entitled to treat the Statements of Account as conclusive evidence of the outstanding sums due under the Agreements. ANALYSIS OF THE DEFENDANT'S FAILURE TO RAISE ANY OBJECTIONS TO THE INVOICES AND IS ESTOPPED FROM CHALLENGING [63] The law is well settled that a party who receives statements of account or invoices and fails to raise timely objections is estopped from disputing those documents at a later stage. In Ekuiti Setegap Sdn Bhd v Plaza 393 Management Corp [2018] 4 MLJ 284, the Court of Appeal held: “[53]… As to the truth of the contents of these documents… the defendant has not disputed the statements of account prior to the filing of this action. The learned judge made a finding of fact that the defendant had received the statements of account and had never disputed the accuracy… Thus… it is highly probable that the contents of the statements… are true and correct.” “[56]… The learned judge was not plainly wrong in concluding that since the defendant had never filed a written dispute with the plaintiff, the defendant had accepted the plaintiff’s statements of account which are all deemed correct….” [64] Similarly, in Yoong Sze Fatt v Pengkalan Securities Sdn Bhd [2010] 1 MLJ 85, the Court of Appeal found that the defendant’s failure to raise complaints, queries, or protests in relation to the contract notes and statements at the earliest opportunity was fatal. At paragraph [21], the Court held: “…The defendant as a reasonable man would no doubt have at the earliest opportunity raised a complaint… He had not done so. It is now too late in the day to deny liability after the commencement of the suit… The defendant’s conduct certainly calls for the application of the doctrine of estoppel.” [65] In Jurudaya Construction Sdn Bhd v Castwell Industries (M) Sdn Bhd [2021] MLJU 794, the High Court reinforced this principle: “The law is clear, where a party fails to raise any objection on the invoice of which they have been served… it is estopped from denying that payment is due from them… Since there were no dispute raised, there can be no serious issues related to the invoice. To my mind, the issues raised… [were] a sheer afterthought.” [66] Other relevant decisions include: Syarikat Logam Unitrade Sdn Bhd v Maxprom Bina Sdn Bhd & Ors [2020] MLJU 621, where the Court held that: “To complain only after the suit had been filed is to my mind a bare denial and an afterthought.” HTC Global Services MSC Sdn Bhd v Kompakar Ebiz Sdn Bhd [2011] 9 MLJ 572: “[28] The law is clear. Where a party fails to raise any objection on the invoice… it is to be estopped from denying that payment is due…” [67] In the present case, the Plaintiff has tendered all relevant invoices, which form the basis of its claims. These invoices were issued to the 1st Defendant and sent in accordance with the terms of the Agreements. The 2nd to 4th Defendants, being the Guarantors, had actual and constructive notice of the same by virtue of the Guarantee obligations and the contemporaneous correspondence, including the demands and termination letters. [68] The Defendants have not produced any written protest, complaint, or objection regarding the contents or accuracy of the invoices at any time prior to the filing of these actions. The evidence adduced shows that the Defendants had every opportunity to raise such objections if there had been any genuine dispute, yet they failed to do so. [69] The Court finds that there is no credible basis for the Defendants to now dispute the invoices or the sums therein, particularly in the absence of any documentary rebuttal or timely objections. Their attempt to challenge the quantum at this stage amounts to a bare denial and is clearly an afterthought. [70] Accordingly, the Court finds that the Defendants are estopped from denying the validity or correctness of the Plaintiff’s invoices. [71] In the present case, the Plaintiff had, over a substantial period, issued numerous invoices to the 1st Defendant, which were partially acted upon through intermittent payments. At no time did the 1st Defendant raise any contemporaneous dispute or objection with respect to the validity or accuracy of those invoices. Notably, even after receiving two Notices of Demand from the Plaintiff dated 14.12.2016 and 16.12.2016 respectively, the 1st Defendant failed to respond or raise any queries concerning the computations stated in the Statements of Account. [72] The Court finds that the 1st Defendant’s complete silence in the face of continuing invoicing, periodic payments, and demand letters constitutes conduct amounting to an estoppel. The 1st Defendant is therefore precluded from disputing the accuracy or enforceability of the invoices or the Statements of Account at this late stage.

Failure to Rebut Termination Letters and Demand Letters [73] The Court of Appeal in KGN Jaya Sdn Bhd v Pan Reliance Sdn Bhd [1996] 1 MLJ 233 affirmed that where a party remains silent in response to a statement of account or a demand letter, and such silence is coupled with other circumstances implying acceptance, the party is estopped from subsequently disputing the contents of those documents. At page 237, Gopal Sri Ram JCA observed: “To put it another way, the appellant, by its silence coupled with the other circumstances of the case, encouraged the respondent to believe that it intended to raise no challenge to... the figure which the account showed as owing... Having done so, it ought not to be permitted to now contend otherwise.” [74] In MP Factors Sdn Bhd v Suang Yang Projects Sdn Bhd & Ors [2007] 8 MLJ 602, the High Court held: “After being served with the notice to repurchase, the defendants did not at any time raise any protest that the amount demanded is incorrect... Thus, by the defendants’ silence, they are estopped from now raising this challenge...” [75] In the present case, the testimony of DW-1 and DW-2 confirmed that neither the 1st Defendant nor any of the other Defendants responded to the Plaintiff’s letters of demand, including those cited in paragraph 56 above. No written protest, query, or clarification was ever issued by the Defendants in response to the termination letters or demand letters issued by the Plaintiff. [76] Accordingly, the Court finds that the Defendants’ present objections are not genuine disputes but are mere afterthoughts, raised only after the commencement of litigation in an attempt to evade their legal liabilities under the agreements and guarantees. Such conduct does not discharge them from their contractual obligations.

Allegation on Past Consideration is Frivolous [77] The defence raised by the 2nd to 4th Defendants that the Guarantees were invalid for want of consideration, on the ground that the Guarantees were signed after the Agreements, is unsustainable in law. The Court of Appeal in Chong Hin Trading Co Sdn Bhd held that: “…the fact that the letter of guarantee dated later than the agreement did not render the contract of guarantee void for past consideration under section 80 of the Contracts Act 1950...” [78] Similarly, in Development & Commercial Bank Bhd v Syarikat Farmco Sdn Bhd & Ors [1988] 3 MLJ 275, the High Court held that a continuing guarantee may cover both existing and future liabilities and is not invalidated merely because the guarantee is executed after the underlying facility or obligation: “...the letter of guarantee was signed on 31 July 1981… it must similarly be treated as a continuing guarantee because it guaranteed not only the overdraft existing at the time but also those in the future.” [79] In the instant case, the 2nd, 3rd and 4th Defendants contend that since the Guarantees were executed on dates subsequent to the Agreements, there was no consideration or, alternatively, only past consideration, thus rendering the Guarantees void and unenforceable. [80] The Court rejects this contention. As illustrated by the authorities in Chong Hin Trading Co Sdn Bhd and Development & Commercial Bank Bhd, the fact that the Guarantees were executed at a later date does not negate their enforceability. The terms of the Guarantees themselves, particularly the recitals and express references to continuing obligations, are wide enough to cover both past and future liabilities, and constitute adequate consideration under the law. Furthermore, the Defendants did not raise this issue contemporaneously or seek to revoke the Guarantees, which further weakens their contention. [81] Subsection 66(2) of the Goods and Services Tax Act 2014 (GST Act) provides that where a supply spans a change in the tax rate, the applicable rate depends on when payment is made or the supply is performed. In particular, if payment or performance occurred prior to the change, tax is chargeable at the earlier rate. [82] Section 4 of the Goods and Services Tax (Repeal) Act 2018 stipulates that despite the repeal of the GST Act, any liability incurred under the GST Act may continue to be enforced as if the Act had not been repealed. [83] The Transitional Rules issued by the Royal Malaysian Customs Department dated 5 September 2018 support this view by confirming that tax incurred before 1 September 2018 remains collectible. [84] In Kan Kok Houw v Ketua Pengarah Jabatan Imigresen Malaysia & Anor [2019] 1 LNS 998, the High Court affirmed that tax liabilities incurred prior to the repeal of the GST Act remain enforceable under section 4 of the Repeal Act. [85] Similarly, in Asiaspace Sdn Bhd v Ketua Pengarah Kastam dan Eksais [2019] 1 LNS 325, the High Court held that even underpaid GST can be recovered pursuant to the Repeal Act. [86] In the present case, it is undisputed that all Agreements were terminated in December 2016, prior to the repeal of the GST Act on 1 September 2018. ANALYSIS OF THE PLAINTIFF’S ENTITLEMENT TO IMPOSE GST [87] The Plaintiff’s Statements of Account include a 6% GST charge imposed on unpaid rentals for the balance of the minimum contractual period, including the period from 1 June 2018 to 31 August 2018. [88] Given that the Plaintiff was contractually entitled to claim rentals for the full minimum period upon termination, the GST liability on such sums is deemed to have arisen upon termination in 2016. As such, the Court finds that the Plaintiff is entitled to impose GST at 6% on the sums claimed, notwithstanding the subsequent repeal of the GST Act. ANALYSIS OF THE PLAINTIFF’S ENTITLEMENT TO MONTHLY RENTAL POST-TERMINATION [89] Clause 7.1 of the Rental Agreements provides that upon termination, the Plaintiff may declare all rentals and other payments for the remaining minimum and renewed periods (if any) to become due and payable immediately. [90] The Plaintiff lawfully exercised this contractual right upon terminating the Rental Agreements in December 2016, and is accordingly entitled to claim the remaining monthly rentals for the balance minimum period, which remained unpaid as at the date of termination. ANALYSIS OF THE PLAINTIFF’S ENTITLEMENT TO 6 MONTHS’ RENTAL FOR NON-RETURN OF EQUIPMENT [91] Clause 7.2(a)(iv) of the Rental Agreements expressly entitles the Plaintiff, upon termination, to impose a charge equivalent to six (6) months’ rental in the event that the Equipment is not returned. [92] By letter dated 31 October 2017, the Plaintiff informed the 1st Defendant of its intention to repossess the Equipment supplied under the 1st and 3rd Rental Agreements. However, the repossession was unsuccessful. [93] The Plaintiff thereafter issued a letter dated 12 March 2018, confirming that due to the 1st Defendant’s failure to return the Equipment, a charge of six (6) months’ rental would be imposed in accordance with Clause 7.2(a)(iv). [94] Based on the evidence adduced, and in the absence of any valid defence or justification offered by the 1st Defendant for the failure to return the Equipment, the Court finds that the Plaintiff is entitled to enforce Clause 7.2(a)(iv) and claim an additional six (6) months’ rental. D. CONCLUSION [95] Based on the Plaintiff’s submissions and the evidence adduced, the Court answers the issues to be tried as follows:

Whether the 1st Defendant is liable to the Plaintiff for the outstanding amount under the accounts as pleaded in the Amended Writ and Amended Statement of Claim and the Agreements? Answer: Yes, but in view of the 1st Defendant’s dissolution, this issue is academic.

Whether the 2nd, 3rd and 4th Defendants, in their capacity as guarantors of the 1st Defendant, are jointly and severally liable for the outstanding amount under the Agreements? Answer: Yes.

Whether the Plaintiff entitled to collect GST charges from the 1st Defendant during the Tax Holiday Period? Answer: Yes, as the Tax Holiday Period is irrelevant, the GST liabilities were incurred before the repeal of the GST Act 2014.

Whether the Plaintiff is entitled to claim the monthly rental after the termination of the Agreements? Answer: Yes.

Whether the Plaintiff is entitled to charge six (6) months’ rental for non-return of the Equipment? Answer: Yes. [96] In the premises, this Court allows the Plaintiff’s claims in all four suits, with costs of RM20,000. Dated : 24th June 2025 ……………………………………………………… (YA PUAN MAHAZAN BINTI MAT TAIB) Judge High Court Malaya Alor Setar, Kedah. Peguam Plaintif : Lee Hui Wen Aufa Radzi (Tetuan Skrine) Peguam Defendan-Defendan : Zulkepli bin Omar (Tetuan Lainah Yaacob & Zulkepli)