(b) where he makes a contract with a person whose mental capacity is temporarily or permanently affected by reason of age, illness, or mental or bodily (emphasis added) under pressure, or that they had no choice but to sign the Guarantees. The by them relate to the commercial status of the 1st defendant, and the need for financing and continued financing for the 1st defendant. For commercial and personal reasons, they had to ensure commission of any act forbidden by the Penal Code, the unlawful detaining or threatening to detain any property, with the intention of causing the 2nd, 4th and 6th defendants to execute the Guarantees, within of the Guarantees, they did not complain or file police reports, or act in any way that would suggest that they were unlawfully coerced to sign the Guarantees. This in my view indicates that the issue of duress is an afterthought, raised by the 2nd, 4th and 6th defendants to avoid liability [41] All three defendants testified that they had signed the Guarantees that the continued financing was provided to the 1st defendant. [42] There had however been no commission or the threat of the the scope of section 15 of the Contracts Act 1950. [43] Further, the 2nd, 4th and 6th defendants did not protest the signing under the Guarantees. [44] I also note that the 4th defendant admitted that there was an option open to him, which was not to sign the Guarantees. [45] From the totality of the evidence as set out above, I am unable to accept the allegation of duress raised by the 2nd, 4th and 6th defendants. b. He was pressured by to sign the Guarantees (lines 23 to 25 at page 155 of the notes of proceedings); c. He was informed that if he did not sign the Guarantees, approval on the execution of the Guarantees would have to be re-tabled to the relevant committees (lines 15 to 25 at page 156 of the notes of proceedings); d. He was informed by officers of the plaintiff and the 2nd defendant that his name would be removed as guarantor (lines 7 to 19 at page 180 of the notes of proceedings); and e. He had the option not to sign the Guarantees (lines 5 to 7 at page 183 of the notes of proceedings). [39] As for the 6th defendant, from the answers given by him during cross-examination, it is evident that he had no personal knowledge of why the Guarantees were required to be signed. Rather, he was informed by the 2nd defendant that he was to provide security for the 1st defendant (lines 8 to 26 at page 107 of the notes of proceedings). The 6th defendant was unable to explain why he had no choice but to sign the Guarantees. [40] From the testimonies of the 2nd, 4th and 6th defendants, together with evidence before this court, it is my finding that the events leading up to the execution of the Guarantees do not show that the 2nd, 3rd or 6th defendants had executed the Guarantees under duress. (emphasis added) [36] The 2nd defendant did not provide any evidence to support the allegation of being additional security. When asked during cross-examination to clarify what he meant by being forced or having no choice, his responses include the following (lines 21 to 23 at page 244 of the notes of proceedings): business and the situation there was no way for me to say [37] At various points during cross-examination, the 2nd defendant repeated that he had no choice in the matter. He did not however provide evidence to prove the allegation of duress. Neither is there any indication that he had protested against the signing of the Guarantees. [38] The 4th defendant revealed that he signed the Guarantees as the 1st defendant was not doing well financially. He was an employee of the 1st defendant, and he was concerned that his salary would not be paid (lines 1 to 2 at page 155 of the notes of proceedings). He further clarified that during cross-examination that: a. He was not pressured by the plaintiff to sign the Guarantees (lines 27 at page 154 of the notes of proceedings); 2 The defence of duress or economic duress must be such as to vitiate free consent in order to render a contract voidable. 3 The concept of coercion as defined in s 15 cannot be equated with that in s 73 in which the word 'coercion' should be given an ordinary and general meaning. 4 Section 73 requires a person to whom money has been paid under coercion to repay or return (emphasis added) [34] In this case, the 2nd, 4th and 6th defendants alleged that they had but to sign the Guarantees. [35] The following was set out in the 2nd witness statement - Q: suggestion for additional security by way of personal guarantees? A: Yang Arif, I was actually forced to accede to the as otherwise the Plaintiff would not have allowed the 1st Defendant to continue with the [31] I also considered the concept of free consent set out in section 14 of the Contracts Act 1950. The section provides that consent is said to be free when it is not caused by, amongst others, coercion or undue influence. [32] is defined in section 15 of the Contracts Act 1950 as the committing, or threatening to commit any act forbidden by the Penal Code, or the unlawful detaining or threatening to detain, any property, to the prejudice of any person whatever, with the intention of causing any person to enter into an [33] In OCBC Securities (Melaka) Sdn Bhd (formerly known as Sykt Tan, Chow & Loh Securities Sdn Bhd) v Koh Kee Huat [2004] 2 MLJ 110, the court referred to authorities on economic duress, and held at page 117 to 118 that: [25] From all the aforesaid authorities in which the concept of duress, including economic duress, has been enunciated, the following principles may be culled: 1 Our courts are slow in invoking the concept of duress as defined in s 15 or to import the concept of economic duress unless there is positive evidence to that effect, which must satisfy the guidelines given by the Privy Council in Pao On. Hyundai Construction Co. Ltd. [1979] Q.B. 705. Both stressed that the pressure must be such that the victim's consent to the contract was not a voluntary act on his part. In their view, there is nothing contrary to principle in recognising economic duress as a factor which may render a contract voidable, provided always that the basis of such recognition is that it must amount to a coercion of will, which vitiates consent. It must be shown that the payment made or the contract entered into was not a voluntary (emphasis added) [30] Based on the principles in Pao On (supra), in determining whether the 2nd, 4th and 6th defendants had executed the Guarantees under duress, the following enquires must be made: a. whether the 2nd, 4th and 6th defendants protested to the signing of the Guarantees; b. whether the 2nd, 4th and 6th defendants had an alternative course open to them, such as an adequate legal remedy; c. whether the 2nd, 4th and 6th defendants were independently advised; and d. whether the 2nd, 4th and 6th defendants took steps to avoid the Guarantees. Duress, whatever form it takes, is a coercion of the will so as to vitiate consent. Their Lordships agree with the observation of Kerr J. in Occidental Worldwide Investment Corporation v. Skibs A/S Avanti [1976] 1 Lloyd's Rep. 293, 336 that in a contractual situation commercial pressure is not enough. regarded as a coercion of his will so as to vitiate his This conception is in line with what was said in this Board's decision in Barton v. Armstrong [1976] A.C. 104, 121 by Lord Wilberforce and Lord Simon of Glaisdale - observations with which the majority judgment appears to be in agreement. In determining whether there was a coercion of will such that there was no true consent, it is material to inquire whether the person alleged to have been coerced did or did not protest; whether, at the time he was allegedly coerced into making the contract, he did or did not have an alternative course open to him such as an adequate legal remedy; whether he was independently advised; and whether after entering the contract he took steps to avoid it. All these matters are, as was recognised in Maskell v. Horner [1915] 3 K.B. 106, relevant in determining whether he acted voluntarily or not. Recently two English judges have recognised that commercial pressure may constitute duress the pressure of which can render a contract voidable: Kerr J. in Occidental Worldwide Investment Corporation v. Skibs A/S Avanti [1976] 1 Lloyd's Rep. 293 and Mocatta J. in North Ocean Shipping Co. Ltd. v. of the 1st assets. The payment was utilised by the plaintiff to partially pay the outstanding principal sum due under the 1st Facility. [25] The liability of the 2nd, 4th and 6th defendants arises from the Guarantees. Under the Guarantees, the 2nd, 4th and 6th defendants unconditionally and irrevocably guaranteed the due and punctual payment of all monies due and owing by the 1st defendant to the plaintiff under and in relation to the Facility Agreements. [26] The evidence provided by the plaintiff shows that this claim was filed after the 1st defendant had defaulted on repayment of the Facilities, and after steps had been taken to recover the amounts outstanding. No evidence was presented by the 2nd, 4th and 6th defendants to support their allegation that this claim was filed prematurely. [27] I therefore find the 2nd, 4th and 6th allegation to be without merit. Did the 2nd, 4th and 6th defendants execute the Guarantees under duress and undue influence from the plaintiff? [28] The 2nd, 4th and 6th defendants claimed that they executed the Guarantees under duress and undue influence from the plaintiff. [29] On this issue, I am guided by Pao On v Lau You Long [1980] AC 614, where the concept of economic duress was explained by the Privy Council at pages 635 and 636: [22] The 1st defendant failed to make payment of amounts owing under the Facilities. [23] Following this, the plaintiff took the following steps to recover the outstanding amounts: a. On 29 August 2018, the plaintiff cancelled and recalled the Facilities and demanded payment of all sums due and owing under the Facilities i.e. a total sum of RM24,636,530.13 (for the 1st Facility) and a total sum of RM4,659,742.39 (for the 2nd Facility), from the defendants. b. On 14 September 2018, the plaintiff exercised its rights under debentures dated 10 September 2013 and 20 May 2016 to appoint a receiver, Mr. Duar Tuan Kiat over the 1st defendant. The appointment of the receiver was not challenged by the 1st defendant. c. On 22 July 2019, the plaintiff issued a final demand of all sums due and owing under the Facilities as at 30 July 2019, from the 1st defendant and the guarantors of the Facilities, including the 2nd, 4th and 6th defendants. This demand went unheeded. [24] After this suit was filed, the plaintiff received payment of a sum of RM983,000 from the receiver, being the proceeds of sale and realisation b. The first instalment payment of RM250,000 was due on 30 November 2014. The 1st defendant failed to pay the 1st instalment under the 1st Facility on the due date. c. At the request of the 1st defendant, the plaintiff agreed to revise the original terms of payment of the 1st Facility on three separate occasions. Revised and supplemental letters of offer were issued on 20 April 2015, 23 May 2016 and 12 April 2017, to effect the revision of the terms of payment. d. The original tenure of the 1st Facility was for a period of 72 months from the date of the first disbursement (i.e. October 2013), and would have expired on 15 October