United Overseas Bank (Malaysia) Bhd v Arissto (Malaysia) Sdn Bhd (BA-22NCC-199-10/2025)

1 IN THE HIGH COURT OF MALAYA AT SHAH ALAM IN THE STATE OF SELANGOR DARUL EHSAN, MALAYSIA SUIT NO: BA-22NCC-199-10/2025 BETWEEN UNITED OVERSEAS BANK (MALAYSIA) BHD (REGISTRATION NO.: 199301017069) ... PLAINTIFF AND

1. ARISSTO (MALAYSIA) SDN BHD (REGISTRATION NO.: 200501000217)

2. LIM CHANG HUAT (NRIC NO.: 691003-10-6253) ... DEFENDANTS GROUNDS OF JUDGMENT INTRODUCTION

1. This judgment concerns the Plaintiff’s application in Enclosure 11, under Order 14 of the Rules of Court 2012 for a summary judgment to be entered against the 2nd Defendant (the Director of the 1st Defendant) as a guarantor of the credit facilities granted to the 1st Defendant. Plaintiff had already obtained a judgment in default of appearance against the 1st Defendant on 20.11.2025 for an 20/04/2026 21:44:28 BA-22NCC-199-10/2025 Kand. 34 S/N fL2w6meXP0yYImc07QkjKg **Note : Serial number will be used to verify the originality of this document via eFILING portal 2 Overdraft facility and a Short‑Term Loan facility, hence now seeking summary judgment against the 2nd Defendant as the guarantor for the said facilities.

2. The 2nd Defendant argues that the Plaintiff changed the manner in which sums were advanced, combined the facilities and imposed increased rates and terms which materially altered the 2nd Defendant’s risk as guarantor. The 2nd Defendant admits that various letters and documents were exchanged between the parties and some were addressed to the 1st Defendant, however, denies liability and requires the Plaintiff to prove each and every material assertion, in particular any contention that the 2nd Defendant is automatically liable as a principal debtor in all circumstances. BRIEF BACKGROUND FACTS

3. The Plaintiff is a financial institution and pursuant to a Letter of Offer dated 29.3.2019, the Plaintiff had granted banking facilities to the 1st Defendant and the Facility agreement was executed by both parties on the 29.03.2019. The relevant credit facilities granted by the Plaintiff to the 1st Defendant is an Overdraft Facility of RM11,000,000.00 and a Short-Term Loan Facility of RM10,000,000.00. Under the terms of the Letter of Offer and the Facilities Agreement, the 1st Defendant expressly agreed, inter alia: - S/N fL2w6meXP0yYImc07QkjKg **Note : Serial number will be used to verify the originality of this document via eFILING portal 3

4. The securities and guarantees given in respect of the Facilities by the Defendants, include the following: -

(ii) Corporate guarantee dated 28.6.2021 executed by NEP Holdings (Malaysia) Berhad;

(iii) The Personal Guarantee dated 28.6.2021 executed by the 2nd Defendant as discussed below. Personal Guarantee by the 2nd Defendant

5. Based on the facts, on the 28.06.2021, when the 2nd Defendant executed the Personal Guarantee for the said facilities, by virtue of clause 2 of the Guarantee, the 2nd Defendant had covenanted to be liable, and to pay on demand, the Indebtedness of all sums due and payable under that agreement. In the Guarantee, the 2nd Defendant had expressly guaranteed amongst others that:

2. PAYMENT ON DEMAND

2.1 We irrevocably and unconditionally guarantee to pay to you on demand the Indebtedness owing to you by the Customer, 'whether or not the whole or part of the Indebtedness have actually become owing to you or have not yet become owing to you.

2.2 As a separate and Independent obligation from our obligations under Clause 2.1, we irrevocably and unconditionally agree, as principal debtors, to indemnify and keep you indemnified against all claims, costs, charges, expenses, losses and liabilities suffered or incurred by you arising from or in connection with your agreeing to make, making or having made or continuing to make available any credit or banking facilities or other accommodation to the Customer or that the Customer falls for any reason whatsoever to pay to you the Indebtedness or any part of it as and when the same is due. S/N fL2w6meXP0yYImc07QkjKg **Note : Serial number will be used to verify the originality of this document via eFILING portal 6

(ii) the granting of any other banking facility whatsoever to the 1st Defendant and/or the variation of any banking facility granted to the 1st Defendant including, but not limited to, replacing, adding to, increasing or reducing such banking facility in any way whatsoever (clause 11.9);

12. CONCURRENT PROCEEDINGS

12. You are free to require us to pay the Indebtedness without first having to take any proceedings to enforce such payment against the Customer. You are also entitled, but have no obligation: ·

12.1 to resort to any other means of payment for your own benefit and in any order as you think fit without our liability to you under this Guarantee being reduced or affected in any way; and

12.2 to enforce this Guarantee against us for the payment of whatever moneys still owing to you by the Customer at any time, whether or not you have resorted to other means of payment.

20. Although, as between us and the Customer, we are sureties, that is, persons who have agreed to be responsible for the liabilities and obligations of the Customer, we agree that, as between you and us, we are to be deemed and to be treated In every way as principal debtors in respect of all the moneys, liabilities and obligations guaranteed by us under this Guarantee. We therefore also agree that our liability under this Guarantee shall not be discharged or affected in any way whatsoever by anything whatsoever which would not discharge our liability if we had in fact been the principal debtors.

6. Reverting to the facts, the 2nd Defendant argues that the Plaintiff materially varied, restructured and altered the said Facilities after the alleged execution of the Guarantee. The 2nd Defendant alleges that the Plaintiff changed the manner in which sums were advanced, combined facilities and imposed increased rates and terms which materially altered the 2nd Defendant’s risk as guarantor. In addition, he further asserts that any variation or restructuring which materially increases the risk of the guarantor without the 2nd Defendant’s informed consent, written reaffirmation or fresh guarantee, discharges the 2nd Defendant from any liability under the Guarantee.

7. Therefore, the Plaintiff is required to prove that any such variation did not increase the 2nd Defendant’s exposure or, if it did, that the 2nd Defendant expressly and independently agreed to such increase in writing. The 2nd Defendant pleads that this Court should, in the alternative, order that the Plaintiff first take S/N fL2w6meXP0yYImc07QkjKg **Note : Serial number will be used to verify the originality of this document via eFILING portal 10 steps to realise the securities and account for all sums recovered therefrom before or contemporaneously with any judgment against the 2nd Defendant.

8. Furthermore, the 2nd Defendant argues that the Plaintiff failed to give the 2nd Defendant adequate notice of material changes to the Facilities including but not limited to interest rate changes, restructuring and consolidation, prior to relying on the Guarantee as a basis for the present claim. The Plaintiff’s failure to notify, to seek reaffirmation or to obtain separate written agreement from the 2nd Defendant constitutes a waiver and must be taken into account in assessing liability. ISSUES BEFORE THE COURT.

9. In summary, the issues, that require resolution for the purposes of deciding whether summary judgment should be entered against the 2nd Defendant are as follows:

10. In the case of Cempaka Finance Bhd v Ho Lai Ying & Anor [2006] 2 MLJ 685 at 689, the Federal Court held that: "In an application under 0. 14, the burden is on the plaintiff to establish the following conditions: that the defendant must have entered appearance; that the statement of claim must have been served on the defendant; that the affidavit in support must comply with r. 2 of 0.14 in that it must verify the facts on which the claim is based and must state the deponent's belief that there is no defence to the claim.(Supreme Leasing Sdn Bhd v. Dior Enterprises & Ors [1989] 1 LNS 144; [1990] 2 MLJ 36.) Once those conditions are fulfilled, the burden then shifts to the defendant to raise triable issues. The law on this is trite." S/N fL2w6meXP0yYImc07QkjKg **Note : Serial number will be used to verify the originality of this document via eFILING portal 12

11. Based on the facts, I am satisfied that the Plaintiff has fulfilled all the preliminary requirements for an application under Order 14 of the Rules of Court 2012 and that the burden therefore shifts to the 2nd Defendant to show this Court why a summary judgment should not be entered against him. Construction of the Guarantee and the effect of variations

12. The Guarantee is definite and unambiguous in its terms as described in Clause 2 which contains a covenant by the 2nd Defendant to pay on demand when the indebtedness arises. Reference to clause 1.1.3 of the said Guarantee defines the phrase Indebtedness to include: - “The aggregate of all monies, obligations and liabilities … outstanding or payable or agreed to be payable … in respect of the Banking Facilities … whether present or future, actual or contingent”.

13. In my opinion, those express words plainly embrace liabilities arising from the said Facilities as varied or restructured. The Guarantee additionally contains express provisions that the Guarantor is liable as a principal debtor and that the Bank may terminate, increase, reduce, vary or restructure the said Facilities without notice to or consent from the Guarantor, and that such actions shall not affect the Guarantor’s obligations under the S/N fL2w6meXP0yYImc07QkjKg **Note : Serial number will be used to verify the originality of this document via eFILING portal 13 Guarantee as the clauses cited above in the Guarantee. Those terms are contractual and in the absence of fraud or misrepresentation, the parties are bound by them.

14. When the contract authorises unilateral variation by the Bank without the Guarantor’s consent and provides that such variation shall not affect the Guarantee, the contractual effect is to preserve the Guarantor’s liability irrespective of later variations. Therefore, in my view, there was no contractual requirement for the 2nd Defendant, to execute a fresh guarantee or sign any reaffirmation after restructuring. The Bank’s conduct in restructuring pursuant to express contractual rights does not, by itself, discharge or diminish the Guarantee. Krishnarajah a/l Ramalingam v Credit Guarantee Corporation Malaysia Berhad [2017] MLJU 458 Utama Merchant Bank Berhad v Soon Hun Technologies (M) Sdn Bhd and Others [2009] MLJU 488 Permata Merchant Bank Bhd v Glove Seal Sdn Bhd & Ors [1993] MLJU 42 The 2nd Defendant’s knowledge and the restructuring

15. The 2nd Defendant’s status as a director of the 1st Defendant and his admitted active involvement in said Facilities, are no doubt, facts properly ascertained before this Court. In my view, where a S/N fL2w6meXP0yYImc07QkjKg **Note : Serial number will be used to verify the originality of this document via eFILING portal 14 Guarantor is also a director of the borrowing company and participates or negotiates facility arrangements, it is not open to him to isolate his position as Guarantor and deny knowledge or assent to arrangements that he, in effect, helped shape or approved in another capacity. Given the 2nd Defendant’s involvement, the Court finds it is unlikely to treat him as unaware of the said liabilities.

16. Furthermore, no persuasive affidavit or contemporaneous reliable evidence was filed by the 2nd Defendant to show he was unaware of the variations or to rebut the effect of the express contractual provisions preserving Guarantor liability. In the absence of such evidence, the Court accepts the Plaintiff’s position that the 2nd Defendant remained bound by the Guarantee.

17. I agree with the Plaintiff, that the Guarantee contains express clauses stating that variations to interest rates do not affect the Guarantor’s liabilities. There is no material before this Court to show that the Bank acted outside the express contractual mechanism for varying rates, nor is there any admissible evidence that the Bank’s notifications were not received by, or were concealed from the Defendants.

18. The 2nd Defendant has not particularised what the correct rate should be nor produced any bank records, agreements or contemporaneous proof demonstrating an apparent error in the S/N fL2w6meXP0yYImc07QkjKg **Note : Serial number will be used to verify the originality of this document via eFILING portal 15 Bank’s computations. In the absence of such evidence, bare assertion that the interest rate is not correct does not raise a triable issue. Ban Hin Lee Bank Bhd v Jashbhai Nagjibhai Patel [1992] 1 CLJ 98 Coronation Electronics Ltd v Lalchand Mahtani [1987] 1 MLJ 190 Public Bank Bhd v Chan Siok Lie & Ors [1989] 2 MLJ 305 Issues on additional securities and obligation to exhaust the said securities

19. The 2nd Defendant argues that the Plaintiff ought to have first enforced the purported charges over properties before making demands on the 2nd Defendant. In addition, he challenges the quantum raised and alleges that the Plaintiff failed to provide a detailed breakdown for its claim, mitigate its losses and take proper steps to, firstly enforce its primary securities before any relief is claimed.

20. Following the arguments put forward by the 2nd Defendant, I refer to Clause 6 of the said Guarantee which states that an additional security is not affected by any other security held by the Plaintiff and Clause 12 of the said Guarantee states that, the Plaintiff is at liberty to commence concurrent proceedings and may enforce S/N fL2w6meXP0yYImc07QkjKg **Note : Serial number will be used to verify the originality of this document via eFILING portal 16 the Guarantee against the 2nd Defendant at any time whether or not it has resorted to other means of payment.

21. I find that the Guarantee is comprehensive and the Bank retains the right to proceed against the Guarantor notwithstanding other securities, as mentioned above. A mere assertion of challenging the breakdown of the Plaintiff’s claim being inconsistent with the quantum not raised in affidavit evidence, in my view cannot raise a triable defence in proceedings for summary judgment. Furthermore the 2nd Defendant did not plead or depose evidentiary material that proves the Bank agreed to forbear, release or waive its rights under the Guarantee in exchange for reliance on other securities.

22. The Bank’s right to pursue the Guarantor is not conditional upon enforcing other securities initially, unless there is an express contractual obligation to do so. The Facilities documentation contains express clauses permitting the Bank to pursue concurrent or successive remedies and to commence proceedings against Guarantors without having firstly to enforce other securities. The Plaintiff’s conduct in issuing demands and combining liabilities is consistent with the contractual regime. There is no evidence of an express undertaking by the Bank that it would exhaust particular securities prior to suing the Guarantor, nor is there evidence that the Bank has waived its rights to pursue the guarantor. On the available record the Bank was entitled to proceed as it did. S/N fL2w6meXP0yYImc07QkjKg **Note : Serial number will be used to verify the originality of this document via eFILING portal 17 Certificate of Indebtedness and evidentiary burden

23. The Plaintiff filed a Certificate of Indebtedness and account statements showing the outstanding balances as at the specified dates. The Certificate constitutes prima facie evidence of the sums due and in my opinion, it relieves the Plaintiff from adducing full transactional proof in chief. However I believe that it requires the 2nd Defendant to produce probative evidence demonstrating manifest error or providing a reliable alternative account. I agree with the Plaintiff that the 2nd Defendant only raised the quantum point in submissions, but did not file affidavit evidence identifying specific errors in the Certificate or in the bank statements, nor did he adduce contemporaneous records disputing the figures.

24. In the absence of such evidentiary dispute, the 2nd Defendant has not discharged the burden to show a real and triable dispute about the quantum. The account statements produced by the Bank corroborates the Certificate totals and there is no demonstrable arithmetic or identifiable manifest error on the face of the documents presented. The Court therefore treats the Certificate and the bank statements as establishing the sums claimed, CONCLUSION S/N fL2w6meXP0yYImc07QkjKg **Note : Serial number will be used to verify the originality of this document via eFILING portal 18

25. For the reasons set out above, the 2nd Defendant’s liabilities under the Guarantee survive the restructuring or variation of the Facilities. The Guarantee’s express terms, manifest a clear contractual intention that variations shall not discharge or affect the Guarantor’s obligations, and the 2nd Defendant, aware and involved in the facility arrangements, cannot successfully assert lack of consent or knowledge so as to create a triable issue. The Bank’s variation of interest was carried out within the contractual power to do so and does not affect the 2nd Defendant’s liability under the Guarantee.

26. The asserted understanding concerning alternative securities and the suggestion that the Bank was obliged to exhaust other securities before suing the 2nd Defendant are unsupported by any security documents, evidentiary material or express contractual undertakings and in my opinion do not raise triable issues. The Plaintiff’s rights in respect of any other facilities and securities should be expressly reserved and does not prevent the Plaintiff from realising or enforcing those securities in accordance with law and contract.

27. The Certificate of Indebtedness and bank statements prima facie, establish the quantum claimed and the 2nd Defendant has not adduced evidence to rebut or identify manifest error. Based on all the submissions and having considered all evidence before me, S/N fL2w6meXP0yYImc07QkjKg **Note : Serial number will be used to verify the originality of this document via eFILING portal 19 this claim is suitable for summary determination and Enclosure 11 is allowed with cost. Dated : 18 April 2026 SGD SHOBA DORAI RAJAH JUDICIAL COMMISSIONER SHAH ALAM HIGH COURT Solicitor for the Plaintiff: Lau Kee Sern [MESSRS KEE SERN, SIU & HUEY (KUALA LUMPUR) ] Solicitor for the Defendants: Sng Eu Kim [MESSRS SULAIMAN & TAYE (KUALA LUMPUR) ] S/N fL2w6meXP0yYImc07QkjKg **Note : Serial number will be used to verify the originality of this document via eFILING portal