Pac Lease Berhad v 1. ) Grenepark Village Sdn. Bhd. (WA-22NCC-619-09/2024)

GRENEPARK VILLAGE SDN. BHD. (NO. SYARIKAT: 201301039849/

GREGORY AMOS YOON PENG SUM

MOHD HALIM WHY BIN ABDULLAH

PARAGRENE LAND BERHAD (NO. SYARIKAT: 199601027709/ 400061-H) ...DEFENDANTS JUDGMENT Introduction [1] Before the court is an application by the Plaintiff under Order 14 of the Rules of Court 2012 for summary judgment against the Defendants. The application was filed on 7.11.2024 seeking judgment for the sum of RM1,170,877.32 as at 2.9.2024, together with interest at 8.00% per annum on RM1,159,800.68 from 3.9.2024 until full settlement, costs and other relief. [2] The application was heard on 29.11.2024 via video conference. Mr. Tan Hong Kait with Ms. Amani Syafiqah appeared for the Plaintiff whilst Ms. Lesley-Ann Yong appeared for the Defendants. Background Facts [3] The Plaintiff is a licensed moneylender holding licence No. WL1338/14/01-11/270826 under the Moneylenders Act Defendant a term loan facility of RM1,500,000.00 pursuant to a Letter of Offer dated 25.10.2022. [4] The terms of the facility were subsequently reduced into a Money Lending Agreement dated 27.10.2022 executed between the Plaintiff and the First Defendant. Under the agreement, the First Defendant was required to pay monthly instalments of RM12,500.00 for the first six months, followed by monthly instalments of RM57,142.00 from the seventh to the thirty-sixth month. [5] The Second and Third Defendants executed individual guarantee agreements dated 27.10.2022, whilst the Fourth Defendant executed a corporate guarantee agreement of the same date, all guaranteeing the First Defendant's obligations under the loan facility. [6] The Plaintiff alleges that the First Defendant defaulted in its payment obligations, prompting the Plaintiff to issue a Notice of Demand and Termination dated 5.4.2024. Following the expiry of the notice period without payment, the Plaintiff commenced this action on 13.9.2024. The Application [7] The Plaintiff's application for summary judgment is premised on the assertion that the Defendants have no defence to the claim and that the case is suitable for summary disposal under Order 14 of the Rules of Court 2012. [8] The Plaintiff contends that it has established a prima facie case showing: a) the existence of valid loan and guarantee agreements; b) proper service of documents in compliance with the Moneylenders Act 1951; c) default by the First Defendant in payment; d) proper service of the demand notice; and e) the continuing liability of all Defendants. Law on Order 14 Applications [9] The law governing applications for summary judgment under Order 14 Rules of Court 2012 is well-established. Order 14 rule 1(1) provides that where a defendant has entered an appearance, the plaintiff may apply to the court for judgment on the ground that the defendant has no defence to a claim included in the writ. [10] Order 14 rule 3(1) provides that unless the court dismisses the application or the defendant satisfies the court that there is an issue or question in dispute which ought to be tried, the court may give such judgment for the plaintiff as may be just. [11] As established by the Federal Court in National Company for Foreign Trade v Kayu Raya Sdn. Bhd. [1984] 2 MLJ 300, once a plaintiff satisfies the preliminary requirements, the burden shifts to the defendant to show that there is a triable issue. The Federal Court held: “If however, these considerations are satisfied, the plaintiff will have established a prima facie case and he becomes entitled to judgment. The burden then shifts to the defendant to satisfy the Court why judgment should not be given against him.” [12] The Supreme Court in Bank Negara Malaysia v Mohd Ismail Ali Johor & Ors [1992] 1 MLJ 400 emphasised that: “the determination of whether an issue is or is not triable must necessarily depend on the law arising from each case as disclosed in the affidavit evidence before the Court.” Triable Issues Raised by the Defendants [13] The Defendants oppose the application and contend that there are several triable issues that warrant a full trial, namely: a) Whether the Defendants failed to comply with the terms and conditions of the facility agreement; b) Whether the Second, Third and Fourth Defendants signed any Letters of Guarantee for the First Defendant; and c) Whether the Defendants received any Notice of Default from the Plaintiff. Analysis and Findings Whether the First Defendant Failed to Comply with Payment Obligations [14] The Plaintiff submits that the First Defendant clearly defaulted in its payment obligations as evidenced by the Statement of Account dated 2.9.2024 (Exhibit CLKY-8). The Plaintiff contends that detailed payment records demonstrate incomplete and delayed payments constituting breach of the agreement. The Plaintiff argues that if the Defendants had indeed made all payments, they should have exhibited proof such as payment receipts or bank transfer slips, which they failed to do. [15] The Defendants categorically deny any default, asserting that the First Defendant had made all monthly instalment payments under the Money Lending Agreement to the Plaintiff. They contend this creates a genuine dispute of fact requiring determination at trial. [16] Having carefully examined the evidence presented by both parties, this court finds that the Plaintiff has established a strong prima facie case of default. The Plaintiff has exhibited a comprehensive Statement of Account (Exhibit CLKY-8) showing the outstanding amounts and payment history. This document clearly demonstrates the First Defendant's failure to make complete and timely payments. [17] In contrast, the Defendants' denial is unsupported by any documentary evidence. As established in Chen Heng Ping & Ors v Intradagang Merchant Bankers (M) Bhd [1995] 2 MLJ 363, where the Court of Appeal held: “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.” [18] The Defendants have failed to produce any evidence such as payment receipts, bank statements, or transfer slips to substantiate their claim that payments were made. During the oral hearing, the Plaintiff's counsel made a particularly pointed submission that if the defendants were genuinely contending that they had paid the instalments as required, they must show some evidence such as payment receipts or bank slips for the particular months identified in the demand letter. No such exhibits were produced. [19] This court finds that the Defendants' bare denial, without supporting evidence, does not create a genuine triable issue. The documentary evidence clearly supports the Plaintiff's claim of default. Whether the Guarantee Agreements Were Executed [20] The Plaintiff contends that the Second, Third and Fourth Defendants executed valid guarantee agreements as evidenced by the signed documents exhibited in the affidavits (Exhibits CLKY-3 and CLKY-4). The Plaintiff argues that the Defendants have not challenged the authenticity of the signatures through expert evidence and that the agreements were properly served on 28.10.2022 with acknowledgment of receipt evidenced in Exhibit CLKY-

[21] The Defendants deny ever signing any letters of guarantee for the credit facilities granted to the First Defendant. They submit that they have no knowledge of any guarantee agreements and categorically deny executing such documents. [22] The court has examined the guarantee agreements exhibited by the Plaintiff. The evidence shows that the Second and Third Defendants executed individual guarantee agreements whilst the Fourth Defendant executed a corporate guarantee agreement, all dated 27.10.2022. [23] Crucially, the Plaintiff has exhibited an acknowledgment letter dated 28.10.2022 (Exhibit CLKY-5) showing that the guarantee agreements were personally served on the Defendants, with acknowledgment of receipt by the Second and Third Defendants on behalf of the First Defendant. [24] The Defendants' denial of execution is not supported by any evidence. They have not sought forensic handwriting analysis or any expert examination to challenge the authenticity of the signatures. As highlighted during the oral hearing, the Plaintiff emphasised that nothing had been done by the defendants to challenge the authenticity of the signatures through forensic testing or expert analysis. [25] The principles established in Bank Islam Malaysia Berhad v Adnan Bin Omar [1994] 4 BLJ 372 are applicable, where the High Court held that knowledge of an agreement is evidenced by the signing of the relevant document: “His knowledge of this is evidenced by his acceptance of the letter of offer containing all the above terms.” [26] Similarly, in Sarawak Securities Sdn Bhd v Andy Chan Chiaw Guan [2000] 7 CLJ 364, the High Court held: “The defendant had signed exh. P1 and he was bound by it. When a document containing contractual terms is signed, then in the absence of fraud, or misrepresentation, the party signing it is bound and it is wholly immaterial whether he had read the document or not.” [27] The Defendants cited The Pacific Bank Bhd v Chan Chin Aun & Ors [1993] 1 CLJ 242, arguing that summary judgment cannot be given against guarantors where the primary debtor's liability has not been established. However, this case is distinguishable as this court has found that the First Defendant's liability for default has been clearly established through documentary evidence in the Statement of Account. [28] The Defendants also relied on Amoda Sdn Bhd v Luxury Home Concept Sdn Bhd [2000] 6 CLJ 369, where the High Court held: “The oral representations made by the plaintiff would certainly bar the plaintiff from obtaining summary judgment against the defendant. The said representations could only be determined by viva voce evidence at the trial of the action.” However, this case is not applicable as the present case involves written guarantee agreements and documentary evidence, not oral representations requiring viva voce evidence. [29] This court finds that the guarantee agreements are valid and binding. The Defendants' bare denial, without any supporting evidence or challenge to the authenticity of the signatures, does not create a genuine triable issue. Whether Proper Notice of Default Was Served [30] The Plaintiff maintains that proper notice was served through its solicitors via registered post on 5.4.2024, as evidenced by proof of posting (Exhibit CLKY-1 in Enclosure 11). The Plaintiff argues that actual receipt is not required where proper service to the correct address has been proven, and that this is sufficient to satisfy the legal requirements. [31] The Defendants categorically deny receiving any Notice of Default from the Plaintiff's solicitors. They submit that this denial creates a material factual dispute that cannot be resolved summarily. [32] The court has examined the evidence of service. The Plaintiff has exhibited proof of posting dated 5.4.2024 showing that the Notice of Demand and Termination was sent via registered post and registered AR to the Defendants' registered addresses. [33] During the oral hearing, the Plaintiff's counsel submitted that what is material is whether the Plaintiff had properly served the notice to the defendants' last known address, not whether the defendants actually received it. [34] The Defendants' denial of receipt does not create a triable issue where proper service has been established through documentary evidence. The proof of posting constitutes sufficient evidence of proper service in accordance with legal requirements. [35] The case of Imatera Digital Image Services Sdn Bhd v Seruhan Syarikat Malaysia [2014] 1 LNS 1157 cited by the Defendants emphasises that judges must determine whether statements in affidavits “have sufficient prima facie plausibility to merit further investigation as to their truth.” In this case, the Defendants' assertion that they did not receive the notice lacks such plausibility given the clear evidence of proper service to their addresses. [36] This court finds that proper notice was served and the Defendants' denial of receipt does not raise a genuine triable issue. Compliance with Statutory Requirements [37] The Defendants raised issues regarding compliance with the Moneylenders Act 1951 and Order 79 of the Rules of Court 2012 in their affidavit in reply. However, the evidence clearly shows: a) The Plaintiff is a licensed moneylender (Exhibit CLKY-9) and has complied with Section 16 of the Moneylenders Act 1951 by serving stamped copies of the agreements on 28.10.2022, three days before disbursing the loan on 31.10.2022 (Exhibit CLKY-5). b) The Statement of Claim adequately pleads all required components under Order 79 rule 3 Rules of Court 2012, including the date of the loan, amount lent, interest rate, contract date, and form of lending. [38] The case of Powernet Industries Sdn Bhd v Golden Wheel Credit Sdn Bhd [2020] 12 MLJ 412 is instructive, where the Court of Appeal held that non-compliance with statutory provisions enacted to protect borrowers cannot be waived. Conclusion and Order [39] Having considered the submissions of both parties and the evidence before the court, this court finds that the Plaintiff has established a strong prima facie case for summary judgment. [40] The Defendants have failed to raise any genuine triable issues. Their defences amount to bare denials unsupported by any documentary evidence. As established in Voo Min En & Ors v Leong Chung Fatt [1982] 2 MLJ 241, where the Federal Court held: “it is not enough for the respondent in answer to the appellants' application to sign final judgment, to raise an issue, or any issue. He must, however, raise such issue as would require a trial in order to determine it. In other words, the issue raised must be an arguable issue.” [41] The issues raised by the Defendants are not arguable as they are contradicted by clear documentary evidence and amount to “unarguable” points that do not warrant a trial. [42] This is a clear case where the Plaintiff has established its claim through comprehensive documentary evidence, and the Defendants have failed to show any genuine defence that would require investigation at trial. [43] Accordingly, the Plaintiff's application for summary judgment under Order 14 is allowed with costs. [44] IT IS HEREBY ORDERED THAT: a) The Plaintiff's application for summary judgment is allowed; b) Judgment is entered in favour of the Plaintiff against the Defendants jointly and severally for: i) The sum of RM1,170,877.32 as at 2.9.2024; ii) Interest at 8.00% per annum on RM1,159,800.68 from 3.9.2024 until full settlement; and iii) Costs of this application of RM3,000.00. 16 June 2022 ATAN MUSTAFFA YUSSOF AHMAD Judge Kuala Lumpur High Court (Commercial Division) Counsel: For the Plaintiff: Tan Hong Kait with Amani Syafiqah (Messrs Sidek Teoh Wong & Dennis) For the Defendants: Lesley-Ann Yong (Messrs. Nandrajog)