Sun Capital Sdn Bhd v Hoe Tze Fook (WA-22NCC-788-10/2023)

This is a judgment granted pursuant to the Plaintiff’s application for summary judgment.

The Plaintiff claimed against the Defendant for sums outstanding pursuant to a moneylending agreement. In this case, the Plaintiff is a licensed moneylender and the only triable issue raised before this Court at the time of the hearing was that the Plaintiff had failed to S/N RipRodWb/kmioZkADyNdgQ **Note : Serial number will be used to verify the originality of this document via eFILING portal 2 take into consideration the payment of RM 1 million made by the Defendant towards the reduction of the principal sum.

The Defendant’s contention has no merits and is against the weight of the evidence. In any event, the Defendant has also acknowledged and admitted to the debt.

Accordingly, this Court granted the summary judgment applied for by the Plaintiff.

The Plaintiff is a licensed moneylender under Moneylenders Act 1951 (“MA 1951”).

By way of a written Moneylending Agreement (Unsecured Loan) dated 9.04.2021 (“the Agreement”), the Plaintiff had agreed to lend and the Defendant had agreed to borrow a principal sum of RM5 million from the Plaintiff to the Defendant (“the Principal Loan Sum”) with an interest rate of 15% per annum (“the Contractual Interest”).

The terms and conditions of the Agreement are, inter-alia, as follows:

The Defendant shall repay the Principal Loan Sum together with the Contractual Interest by way of 12 monthly instalments in the following manner: S/N RipRodWb/kmioZkADyNdgQ i) 11 equal monthly instalments of RM62,500.00 each month commencing from 10.5.2021; and ii) final instalment of RM5,062,500.00 due and payable on 11.4.2022.

The Plaintiff shall be entitled to charge simple interest on the unpaid instalment, which shall be calculated at the rate of 8% per annum from day to day from date of default of repayment until that sum is paid (“the Late Payment Interest”);

If the Defendant fails to repay any instalment payable or any part thereof including the Contractual Interest for any period in excess of 28 days after the due date, the Plaintiff is at liberty to terminate the Agreement;

The Plaintiff is to give the Defendant written notice not less than 14 days to rectify the default, failing which the Agreement shall be deemed repudiated;

Time is of the essence. [8] On 9.04.2021, the Plaintiff lent the Defendant the Principal Loan Sum. [9] The Amended Annexure A to the Amended Statement of Claim lists out the repayments made by the Defendant to the Plaintiff, which particulars and evidence can be summarised as follows:

31.05.2021 • Maybank Statement dated 30.06.2021. Cheque payment reflected as 1.06.2021. Exh. A- 1 Encl. 16. • 1st line of Table 2, Amended Annexure A.

17.06.2021 RM62,883.56 • Maybank Statement dated 30.06.2021. Transfer on 17.06.2021. Exh. A-1 Encl. 16. 2nd line of Table 2, Amended Annexure A.

12.07.2021 RM62,527.40 • Maybank Statement dated 31.07.2021. Transfer on 12.07.2021. Exh. A-1 Encl. 16. • 3rd line of Table 2, Amended Annexure A.

26.08.2021 RM62,760.28 • Maybank Statement dated 31.08.2021. Transfer on 26.08.2021. Exh. A-1 Encl. 16. • 4th line of Table 2, Amended Annexure A.

20.09.2021 RM62,636.99 • Maybank Statement dated 30.09.2021. Transfer on 20.09.2021. Exh. A-1 Encl. 16. • 5th line of Table 2, Amended Annexure A.

12.10.2021 • Maybank Statement dated 31.10.2021. Transfer on 12.10.2021. Exh. A-1 Encl. 16. 6th line of Table 2, Amended Annexure A.

29.10.2021 RM62,513.70 • Maybank Statement dated 31.10.2021. Transfer on 29.10.2021. Exh. A-1 Encl. 16. • 7th line of Table 2, Amended Annexure A.

24.11.2021 RM500,000.00 • Maybank Statement dated 30.11.2021. Transfer on 24.11.2021. Exh. A-1 Encl. 16. • 8th line of Table 2, Amended Annexure A. Note: This is a part payment of the Principal Loan Sum (i.e. due and payable under the 12th Instalment on 11.04.2022).

8.12.2021 • Maybank Statement dated 31.12.2021. Transfer on 8.12.2021. Exh. A-1 Encl. • 9th line of Table 2, Amended

6.01.2022 • Maybank Statement dated 31.01.2022. Transfer on 6.01.2022. Exh. A-1 Encl. 16. • 10th line of Table 2, Amended Annexure A.

25.01.2022 RM500,000.00 • Maybank Statement dated 31.01.2022. Transfer on 25.01.2022. Exh. A-1 Encl. 16. • 11th line of Table 2, Amended Annexure A. Note: This is a part payment of the Principal Loan Sum (i.e. due and payable under the 12th Instalment on 11.04.2022).

10.02.2022 • Maybank Statement dated 28.02.2022. Transfer on 10.02.2022. Exh. A-1 Encl. 16. • 12th line of Table 2, Amended Annexure A. [10] Prior to making the payment on 6.01.2022 (as stated in item 10 above), the Defendant via his letter dated 5.01.2022 informed the Plaintiff that in respect of the balance Principal Loan Sum amounting to RM4,500,000.00 (due and payable under 12th Instalment on 11.04.2022 upon having paid RM500,0000 on 24.11.2021) it would be paid in 3 instalments before the due date of 11.04.2022 and that all interest and repayment will remain, and be paid in full as per the Agreement. [11] Thereafter, the Defendant failed to pay the following: i) the Contractual Interest in the sum of RM62,500.00 due payable on 11.03.2022 under the 11th Instalment; ii) the Contractual Interest in the sum of RM62,500.00 due payable on 11.04.2022 under the 12th Instalment; and iii) the balance Principal Loan in the sum of RM4 million due payable on 11.04.2022 under the 12th Instalment. [12] By way of the Plaintiff’s then solicitors’ (Messrs Mah-Kamariyah & Philip Koh’s) letter dated 29.9.2022, the Plaintiff demanded from the S/N RipRodWb/kmioZkADyNdgQ Defendant that the sum of RM4,280,027.40 (consisting of balance Principal Loan Sum and the Contractual Interest of RM4,125,000.00 together with the Late Payment Interest of RM155,027.40) due and payable as at 29.9.2022 to be paid within 14 days from the date of the said letter, failing which the Plaintiff shall be entitled to deem the Agreement as terminated and commence legal proceeding against the Defendant. [13] However, the Defendant failed to adhere to the Plaintiff’s demand and rectify the breach. [14] On 26.10.2023, the Plaintiff filed the suit herein. [15] On 10.01.2024, the Plaintiff filed Encl. 10 for summary judgment. Triable Issues [16] The Defendant claims that the Plaintiff has failed to take into account the sum of RM1 million paid towards the principal loan sum and thus failed to reduce the interest accordingly. The Defendant has also alleged that the interest calculation is wrong and the Plaintiff has failed to show the calculations. Court’s Considerations [17] The Plaintiff claim is for RM4,634,438.37 as at 26.10.2023 consisting of:

RM4 million being the balance of the Principal Loan Sum;

(ii) Contractual Interest of RM125,000.00 (RM62,500 x 2 months); and

(iii) Late Payment Interest of RM509,438.37. [18] In the Amended Annexure A and in the Statement of Account furnished, the Plaintiff has clearly set out the calculation of the interest. In Table 3 of Annexure A, the principal outstanding amount shown is RM4 million (upon deducting the payment of RM1 million, which was paid in two tranches). [19] The interest rate for an unsecured loan (as the present case) is not to exceed 18% per annum pursuant to Section 17A(1) MA 1951. The parties had agreed to a lesser Contractual Interest i.e. 15% per annum as per Section 5 of the First Schedule of the Agreement. Further, this is in accordance with Section 5 of Jadual J of Peraturan-peraturan Pemberi Pinjam Wang (Kawalan dan Pelesenan) 2003). [20] Pursuant to Clause 2(1) and 2(2) of the Agreement, the Plaintiff is entitled to claim for simple interest of 8% per annum calculated from day to day on the unpaid sum of the instalments, whether in respect of principal or interest. This is in accordance with Para 2(1) and 2(2) of Jadual J of Peraturan-peraturan Pemberi Pinjam Wang (Kawalan dan Pelesenan) 2003. The Agreement was in fact drafted and executed is in accordance with the Jadual J of the Regulations. [21] Therefore, the Plaintiff has prima facie satisfied the conditions for summary judgment, shown sufficient evidence of its calculation in S/N RipRodWb/kmioZkADyNdgQ respect of the claim and that it has acted in compliance with the existing laws and regulations. As such, the burden now shifts to the Defendant to satisfy the Court as to why summary judgment should not be granted. [22] However, the Defendant has not been able to demonstrate any bona fide triable issues to the Plaintiff’s claims. The contention that the Plaintiff has failed to take into account the sum of RM1 million paid towards the principal loan sum is not supported by the evidence at all. In fact, at the hearing, after it was shown to counsel for the Defendant that the Plaintiff’s computation of interest is based on the principal sum of RM 4 million (after deducting the RM 1 million paid), learned counsel for the Defendant candidly conceded that there is no triable issues to the Plaintiff’s claims. [23] In any case, the Defendant’s letter dated 5.01.2022 is an admission of the debts owed to the Plaintiff. From this letter, it can be seen that:

the Defendant expressly admitted that the Agreement exists;

at the time of writing of the letter, the Defendant acknowledged and admitted that “the outstanding principal” is RM4.5 million;

the Defendant acknowledged and admitted that “All interest/repayment will remain” and he will pay them “in full in accordance to the Money Lending Agreement”;

the Defendant is not in any way challenging the interest calculations and that he is well aware of the status of his borrowing and that impliedly, he has been receiving statements and accounts update of his borrowing. [24] The Defendant has also failed to show how the Plaintiff’s calculation of the interest payable is wrong. Conclusion [25] Based on the aforesaid, the Plaintiff has shown that this action is suitable to be disposed of by summary judgment and that the Defendant had failed to show that they have a valid and bona fide defence to the claim. [26] In the premises, this Court grants the Plaintiff an order in terms of Enclosure 10. Dated the 27th day of June 2024 ONG CHEE KWAN Judge of the High Court of Malaya High Court of Kuala Lumpur, NCC2 & Admiralty S/N RipRodWb/kmioZkADyNdgQ Counsel:

Mr. David Soosay together with Ms. Alani Farhah for Plaintiff

Ms. Gomathy Balasupramaniam for Defendant

Moneylenders Act 1951