United Overseas Bank (Malaysia) Bhd. v 1. ) Premium Plaza Sdn. Bhd. (WA-22NCC-925-12/2023)

PREMIUM PLAZA SDN. BHD. (COMPANY NO.: 200601023088

PANG YEE HONG (FANG YIFENG)

DARREN LOW JUN JIE

ONG AH CHOO (SINGAPORE ID: S0883074F) ... DEFENDANTS JUDGMENT [1] This judgment concerns an application by the Plaintiff, United Overseas Bank (Malaysia) Bhd., for summary judgment against the Defendants, Premium Plaza Sdn. Bhd. (the 1st Defendant) and its guarantors Pang Yee Hong, Darren Low Jun Jie and Ong Ah Choo (the 2nd to 4th Defendants respectively), for outstanding sums due under credit facilities granted by the Plaintiff to the 1st Defendant. The key issues before the Court are whether the Defendants have raised any triable issues or shown any defence to the Plaintiff's claim that would warrant a full trial, in particular concerning the applicable interest rate, the Plaintiff's alleged need to first realise its security before suing the guarantors, and the admissibility of certain documents. The credit facilities consisted of a term loan of RM30 million and a revolving credit facility of RM35 million granted by the Plaintiff to the 1st Defendant in 2015-2016, secured by a guarantee of the 2nd to 4th Defendants and various other securities. It is not disputed that the 1st Defendant defaulted in its repayment obligations, and as at 18.1.2024, the sums of RM22,214,168.76 and RM58,655,239.57 are due and owing under the term loan and revolving credit facility respectively, with interest continuing to accrue. Background facts [2]

Defendant, and letters of notification dated 19.11.2015,

12.2015, 8.6.2016, 16.2.2017, 29.5.2017, 15.11.2017 and 13.8.2018 issued by the Plaintiff to the 1st Defendant and a Facilities Agreement dated 31.5.2016 entered into between the Plaintiff and the 1st Defendant (“the Facility Agreement”), the Plaintiff granted the following credit facilities to the 1st Defendant: a) Term Loan of RM30,000,000.00 limit; and b) Revolving Credit Facility of RM35,000,000.00 limit. [3] The credit facilities were secured by, inter alia, the following in favour of the Plaintiff: a) A Guarantee dated 31.5.2016 (“the Guarantee”) executed by the 2nd Defendant, the 3rd Defendant and the 4th Defendant; b) A Deed of Assignment dated 31.5.2016 entered into between the Plaintiff and the 1st Defendant over shop lots and kiosks within “Kuantan Parade” in Kuantan, Pahang; c) A Debenture dated 31.5.2016 entered into between the Plaintiff and the 1st Defendant (“the Debenture”); and d) A Deed of Assignment of rental proceeds dated 31.5.2016 entered into between the Plaintiff and the 1st Defendant. [4]

the defendant must have entered an appearance;

(ii) the statement of claim must have been served on the defendant; and

(iii) the affidavit in support of the application must comply with the requirements of Rule 2 of the Order 14. ... If the plaintiff fails to satisfy either of these considerations, the summons may be dismissed. 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.” [20] The Plaintiff has satisfied these preliminary requirements, and this is not disputed by the Defendants. Thus, the burden is now firmly on the Defendants to show that there is a triable issue that does not justify summary judgment to be entered against it. If the Defendants can demonstrate even one triable issue, this court will not grant summary judgment. But it has to be a genuinely triable issue as would require a trial in order to determine it [see Voo Min En & Ors v Leong Chung Fatt [1982] CLJU 47; [1982] 1 LNS 47; [1982] 2 MLJ 241 (Federal Court)]. Issues [21] There are a number of triable issues put forward by the Defendants in this matter listed as follows: a) Whether the Plaintiff had the power to unilaterally revise the interest rate on the credit facilities without prior notice to the Defendants. b) Whether the Plaintiff is estopped from relying on the correspondence seeking indulgences/extensions as amounting to admissions of the debt, since the Defendants claim these were “without prejudice” communications during settlement negotiations. c) Whether the parties had waived their “without prejudice” privilege over these communications. d) Whether the “without prejudice” correspondence can be relied upon by the Plaintiff to establish an admission of the debt.” e) Whether the Plaintiff is bound by the doctrine of election, whereby by appointing a receiver over the charged property (Kuantan Parade), the Plaintiff had elected to first realise that security before pursuing the guarantors. f) Whether the appointment of the receiver deprived the Defendants of utilising the charged property to fulfil their repayment obligations for the credit facilities. g) Whether there was an understanding between the parties that the Plaintiff would realise the charged property first before commencing action against the guarantor Defendants. h) Whether the Defendants were under undue influence or duress from the Plaintiff when executing various instruments like the guarantee and settlement arrangements. Analysis and findings of the court Whether the Plaintiff had the power to unilaterally revise the interest rate on the credit facilities without prior notice to the Defendants. [22] The Plaintiff submitted that by the letter dated 8.11.2018, the Plaintiff notified the 1st Defendant of the revision of the prescribed interest rate for the credit facilities to 3.5% per annum above the Plaintiff's BLR on monthly rests, with effect from 30.11.2018. The Plaintiff contended that this letter was delivered by courier to the 1st Defendant and emailed to the 1st Defendant's representatives. Further, the Plaintiff argued that pursuant to the Letter of Offer and the Facility Agreement, the 1st Defendant had expressly agreed that in the event of default, the Plaintiff could charge interest at 3.5% above the BLR or such other rate as may be prescribed by the Plaintiff from time to time at its sole discretion. The Plaintiff also submitted that Clause 12.6(b) of the Facility Agreement does not require the Plaintiff to issue prior notice before imposing the revised interest rate. [23] The Defendants in their affidavit in reply merely made a bare denial that the Plaintiff had failed to inform and unilaterally revised the interest rate without prior notice. No evidence was adduced by the Defendants to substantiate this assertion. [24] Having considered the affidavit evidence and the submissions of the parties, I find that the Plaintiff has shown that there is no triable issue in respect of the Plaintiff's power to revise the interest rate. The documentary evidence clearly shows that the Plaintiff had notified the 1st Defendant by letter dated 8.11.2018 of the revision in interest rate effective 30.11.2018. This letter, which was exhibited in the Plaintiff's affidavit, was delivered by courier and email to the 1st Defendant. The Defendants have not denied receiving this letter. [25] Further, based on Clause 11.1 of the Letter of Offer and Clause 12.6(b) of the Facility Agreement, the 1st Defendant had contractually agreed that upon default, the Plaintiff could charge interest at 3.5% above the BLR or such other rate as may be prescribed by the Plaintiff from time to time at its sole discretion. Clause 11.1 of the Letter of Offer provides: “11. Default Interest

11.1 The following interest rate or such other rates as may be prescribed by the Bank from time to time at its sole and absolute discretion, to be calculated on monthly rests or such other periodic rests as the Bank may prescribe, shall be charged on all monies outstanding and payable to the Bank including all interest, fees commissions and charges not paid when due, from the date of such default until the date of full payment thereof, both after as well as before any demand or judgement, and notwithstanding that the banker and customer relationship may have ceased or have been terminated:

(a)

3.50% per annum above the Bank’s Base Lending Rate on any monies paid by the Bank on any letter of credit which is not subsequently converted to trust receipt or banker's acceptance.

(b)

3.50% per annum above the Bank’s Base Lending Rate on any banker’s acceptance and export credit refinancing due but not paid.

(c)

3.50% per annum above the Bank’s Base Lending Rate for debit balances in excess of the implemented limit for overdraft facility,

(d)

3.50% per annum above the Bank's Base Lending Rate on such sum paid by the Bank pursuant to any bank guarantee or standby letter of credit issued by the Bank.

(e)

3.50% per annum above the Bank's Base Lending Rate on all other monies outstanding and payable to the Bank not provided for herein this clause.

additional interest at the rate of 1.00% above the prescribed interest rate for overdue trust receipt, overdue payment under revolving credit facility.

additional interest at the rate of 1.00% above the prescribed interest rate for overdue payment of the Ringgit IF transaction under the invoice financing facility.

(h)

3.50% per annum above the Bank's Base Lending Rate for overdue payment of the foreign currency IF transaction under the invoice financing facility.

(i)

1.00% per annum on any overdue instalment.” [26] Clause 12.6(b) of the Facility Agreement expressly states that if the 1st Defendant defaults on the payment of any money due to the Plaintiff, the 1st Defendant will pay interest at a rate determined by the Plaintiffat its absolute discretion, in addition to and without affecting the powers, rights, and remedies granted under the agreement. It reads: “12.6 Additional interest and default rate …..

In addition to and without affecting the powers, rights, and remedies granted under this Agreement, if the Borrower defaults in the payment on the due date of any money payable by the Borrower to the Bank the Borrower will pay the Bank interest at the rate fixed by the Bank at Its absolute discretion from time to time. ….” [27] It is trite law that clear and unambiguous contractual terms should be given effect by the court. The Defendants, having agreed to the express terms in the Letter of Offer and Facility Agreement, cannot now resile from those terms. The Defendants have not adduced any evidence to show that those clauses are invalid, void or inapplicable. [28] Moreover, despite being notified of the revised interest rate, the Defendants did not at any material time object to or raise any issue regarding the rate of 3.5% above the BLR. The failure to object amounts to acceptance of the revised rate. The Defendants are therefore estopped from now challenging the revised interest rate, as held by the Federal Court in Boustead Trading [1985] Sdn Bhd v Arab-Malaysian Merchant Bank Bhd [1995] 3 MLJ 331. [29] For these reasons, I find that the Plaintiff has successfully shown that the Defendants have no defence or triable issue in respect of the Plaintiff's power to revise the interest rate on the credit facilities. The Defendants' bare denial is insufficient to establish any triable issue that warrants a full trial. Accordingly, there is no bona fide triable issue in respect of this challenge by the Defendants. Whether the Plaintiff is estopped from relying on the correspondence seeking indulgences/extensions as amounting to admissions of the debt, since the Defendants claim these were “without prejudice” communications during settlement negotiations. Whether the parties had waived their “without prejudice” privilege over these communications. Whether the “without prejudice” correspondence can be relied upon by the Plaintiff to establish an admission of the debt.” [30] The Defendants contend that the correspondence between the parties, which the Plaintiff relies on as admissions of the debt, were in fact “without prejudice” communications made in the course of settlement negotiations. The Defendants thus argue that the Plaintiff is estopped from relying on these communications and that there are triable issues as to whether the parties had waived the “without prejudice” privilege and whether the Plaintiff can rely on the correspondence to establish an admission of the debt. [31] The Plaintiff submitted that the correspondence from the 1st Defendant show that the 1st Defendant was merely seeking indulgence and asking for more time to repay the outstanding sums. The Plaintiff argued that these communications cannot be considered as having been made on a “without prejudice” basis, relying on the Federal Court decision in Ted Bates (M) Sdn Bhd v Balbir Singh Jholl [1979] 2 MLJ 257 and the High Court decision in HSBC Bank Malaysia Bhd v LH Timber Products Sdn Bhd & Ors [2005] 6 MLJ 625. The Plaintiff contended that the correspondence constitutes clear admissions of the debt by the Defendants, and the Defendants are therefore estopped from denying their liability. [32] Having carefully considered the correspondence exhibited in the Plaintiff's affidavit and the submissions of the parties, I find that the correspondence from the 1st Defendant, particularly the letters dated 8.11.2019, 19.11.2019,

8.1.2020 and 29.1.2020, clearly show that the 1st Defendant was asking the Plaintiff for more time to pay the outstanding amounts under the credit facilities. [33] In the letter dated 8.11.2019, the 1st Defendant informed the Plaintiff that it was seeking more time of around 3 months to obtain regulatory approval to draw down private funding from Singapore to repay the debt owed to the Plaintiff. In the meantime, the 1st Defendant proposed to make partial repayments of RM5 million in early November 2019 and RM10 million in early January 2020 from a settlement sum it had reached with the Selangor state government. The 1st Defendant also inquired if the Plaintiff could consider restructuring the debt amount at a lower interest rate instead of the default rate. [34] In the letter dated 19.11.2019, the 1st Defendant informed the Plaintiff that the first partial payment of RM5 million would be made by 20.11.2019 from the settlement sum received from Scenic Marina Sdn Bhd. The second partial payment of RM10 million from the settlement with the Selangor state government would be made on or before 15.1.2020 due to the festive period. The company was also arranging for the guarantors to sign UOB's letter accepting the terms, except for the timing of the second payment. [35] In the letter dated 8.1.2020, the 1st Defendant informed the Plaintiff that it was still awaiting regulatory approval to draw down private funding from Singapore to repay the Plaintiff. As an alternative, the 1st Defendant proposed using proceeds from its settlement with the Selangor state government, setting aside RM10 million which could be paid to the Plaintiff by 15.1.2020, subject to the Plaintiff extending the deadline to settle the remaining amount owed until 15.6.2020. The 1st Defendant also requested the Plaintiff’s indulgence to reduce the monthly retainer payment from RM470,000 to RM350,000 starting January 2020 due to increased overhead costs. [36] In the letter dated 29.1.2020, the 1st Defendant informed the Plaintiff that the second partial payment of RM10 million from the settlement with the Selangor state government and the outstanding monthly payments totaling RM640,000 for November and December 2019 would be made on or before 15.2.2020. This was due to one of the signatories being out of town, resulting in a delay in making the payments outlined in UOB's letter dated 22.1.2020. An email communication regarding the delay in payments was enclosed with the letter. [37] There was no dispute as to the Defendants' liability for the debt. The letters merely sought indulgence and extension of time from the Plaintiff to make payment. Applying the principle in Ted Bates, where a party states that it owes a certain sum and merely asks for time to pay, this would not attract “without prejudice” privilege as there is no dispute to be settled. The Federal Court in Ted Bates held that the question of prejudice has no application unless a person is in dispute or negotiation with another at the time. The Court stated: “The learned judge considered that that letter should have been regarded as written without prejudice. With respect, we think he is wrong. This has no application to a case where a man says he owes another a certain sum but merely asks fo r time to repay the sum.” [38] While some of the correspondence, such as the Plaintiff's letters dated 15.11.2019, 22.1.2020 and 30.1.2020 were marked “without prejudice”, this does not automatically clothe the entirety of the communications with privilege. The court will consider the whole context to determine if there was a genuine attempt to settle a dispute, as held in Wong Nget Thau & Anor v Tay Choo Foo [1994] 3 MLJ 723. The High Court expressed: “I am of the view that Malayan Banking Bhd v Foo See Moi does not lay down the proposition that any letter that is marked 'without prejudice' is inadmissible irrespective o f the circumstances in which it was issued. The fact that a document is headed 'without prejudice' does not conclusively or automatically render it privileged from admission in evidence in any subsequent proceedings and if a claim for such privilege for the document is challenged the court will look at the document to determine its nature. The court must in each case, when deciding whether a particular letter marked 'without prejudice' is admissible, consider whether the letter was part o f a genuine attempt to settle a dispute.” [39] Here, it is clear from the correspondence that there was no dispute as to the Defendants' indebtedness and liability. The 1st Defendant was merely seeking more time to repay the admitted debt. [40] The correspondence was therefore not aimed at settlement of a disputed claim. As stated in High Point Technic Sdn Bhd v Thrustbar Resources Sdn Bhd [2021] MLRHU 2174 (HC), where liability is admitted and the communications only discuss how the admitted sum is to be paid, such communications will not attract “without prejudice” privilege even if labelled as such. Since no genuine dispute exists, the dominant purpose of the correspondence was not to negotiate a settlement. Accordingly, the Defendants' attempt to retrospectively cloak the correspondence with privilege must fail. The Plaintiff is entitled to rely on the clear admissions of liability in the letters. [41] As there were no genuine “without prejudice” negotiations, the issue of waiver of privilege also does not arise. [42] In conclusion, I find that the Plaintiff has shown that the Defendants have no defence on this issue. The correspondence relied on by the Plaintiff do not attract “without prejudice” privilege as there was no genuine attempt to settle a dispute. The letters in fact contain clear admissions by the Defendants of the outstanding debt. The Defendants are therefore estopped from denying their liability. Whether the Plaintiff is bound by the doctrine of election, whereby by appointing a receiver over the charged property (Kuantan Parade), the Plaintiff had elected to first realise that security before pursuing the guarantors. Whether the appointment of the receiver deprived the Defendants of utilising the charged property to fulfil their repayment obligations for the credit facilities. Whether there was an understanding between the parties that the Plaintiff would realise the charged property first before commencing action against the guarantor Defendants. [43] The Defendants have raised three related issues concerning the realisation of the charged property known as Kuantan Parade, which was secured under the Debenture. I will deal with these issues together as they are interlinked. [44] Firstly, the Defendants argue that the Plaintiff is bound by the doctrine of election, such that by appointing receivers over Kuantan Parade, the Plaintiff had elected to first realise that security before pursuing the guarantors. Secondly, the Defendants contend that the appointment of receivers deprived them of utilising Kuantan Parade to fulfil their repayment obligations under the credit facilities. Finally, the Defendants assert that there was an understanding between the parties that the Plaintiff would realise the charged property first before commencing action against the guarantor Defendants. [45] The Plaintiff refuted these arguments by relying on the express terms of the Debenture, Facility Agreement and the Guarantee which provide that the Plaintiff's rights and remedies are cumulative, the Plaintiff may pursue all remedies concurrently, and the Plaintiff is entitled to commence action against the Defendants without first having to realise the security. The Plaintiff also submitted that the Defendants have not adduced any documentary evidence of the alleged understanding that the Plaintiff must first realise the security before suing the guarantors. [46] I have carefully scrutinised the affidavit evidence and the transaction documents exhibited therein. Based on the materials before me, I find that the Plaintiff has shown that the Defendants have no bona fide triable issues in respect of the three contentions raised. [47] Under the Debenture, the 1st Defendant expressly agreed that the Plaintiff's rights and remedies are cumulative (section 12.22), the Plaintiff can exercise all powers and remedies concurrently (section 12.19), and the 1st Defendant is prohibited from disposing of the charged assets so long as any sums remain due to the Plaintiff (sections 6.3.2.2 and 8.2.4). [48] Section 6.3.2.2 reads: “6.3.2 Save and except for the charges and securities created herein, the Borrower hereby covenants that it will not without the prior consent in writing of the Lender:- …………

6.3.2.2 part with possession of transfer sell lease or otherwise dispose of the Charged Assets or any part thereof or attempt or agree so to do (except in the case of stock in trade which may be sold at market value in the normal course of trading as now conducted for the purpose of carrying on its business).” [49] Section 8.2.4 reads: “8.2 The Borrower hereby further covenants and undertakes that so long as any money remains payable under this Debenture or so long as the Credit Facilities remain available to the Borrower, it will not without the prior written consent of the Lender:- …….

8.2.4 sell or dispose of any fixed assets or investments;” [50] Section 12.19 reads: “Notwithstanding any provision herein to the contrary, it is hereby expressly agreed that upon the occurrence of an Event of Default or breach of any of the provisions in this Debenture or other security documents by the Borrower, the Lender shall have the right to exercise concurrently all or any of the remedies available either by this Debenture or other security documents or by statute or otherwise, including but not limited to pursuing all remedies of sale or possession pursuant to this Debenture or other security documents and civil suit to recover all principal sums, interest, monies, and liabilities outstanding, due, payable, or agreed to be payable by the Borrower or any Security Party from time to time under or pursuant to this Debenture and/or any of the other security documents or otherwise in respect of or arising from the Credit Facilities.” [51] Section 12.22 reads: “The rights, remedies, powers and privileges provided under this Debenture are cumulative and are not exclusive of any rights, remedies, and privileges provided by law or any other agreement between the parties or otherwise.” [52] The Facility Agreement is to similar effect, providing that the Plaintiff's rights and remedies are cumulative (clause 71.1) and the Plaintiff may commence proceedings upon default without first realising the security (clauses 29.1 and 37(e)). [53] Clause 71.1 reads: “The rights, remedies, powers, and privileges provided under this Agreement are cumulative and are not exclusive of any rights, remedies, and privileges provided by law, in any other agreement between the parties or otherwise.” [54] Clauses 29.1 reads: “The Borrower agrees that the obligations to pay and repay the Bank under this Agreement and the Security Documents are separate and independent obligations which give the Bank separate and independent rights and causes of action regardless of any waiver or indulgence which may have been granted by the Bank in respect of any one or more of those obligations; accordingly, the Bank shall have the right to seek remedy in respect of a breach of any one of those obligations independently of or at the same time as any other remedy the Bank may seek in respect of any other breach of those obligations. In particular, the Bank shall have the right to commence any action in respect of any breach of those obligations without having first resorted to any other remedy or having first sold or disposed of any Security.” [55] Clause 37(e) reads: “The Borrower expressly agrees that each of its obligations to pay or repay under this Agreement or the Security Documents:- ……..

can be relied upon and enforced by the Bank independently, or together with any other action under such obligations or under the Security Documents, and the Bank does not need to first use any other remedy available to the Bank.” [56] Likewise, under the Guarantee, the 2nd to 4th Defendants agreed to be liable as principal debtors (clause 19.1) and the Plaintiff may enforce the Guarantee irrespective of whether other means of recovery have been pursued (clause 11.1.2). [57] Clause 11.1.2 reads: “You are free to require Us to make payment to You of any moneys owing to You by the Customer without having taken any proceedings to enforce such payment by the Customer. You are also free, but have no obligation:- …. to enforce this Guarantee against Us for the payment of whatever moneys are still owing to You by the Customer at any time whether or not You have resorted to other means of payment.” [58] Clause 19.1 reads: “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 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.” [59] These clear contractual clauses are plainly inconsistent with the Defendants' arguments on election, deprivation of the use of the charged property, and the purported understanding on realisation of security. If, as the Defendants now contend, there was truly an agreement that the Plaintiff had to first realise the security before suing the guarantors, such a term would surely have been expressly set out in the transaction documents. A clause to that effect would amount to a significant fetter on the Plaintiff's rights and it is unlikely that it would have been left out of the written contracts. Instead, a wholistic reading of the Debenture, Facility Agreement and Guarantee unambiguously allows the Plaintiff to pursue concurrent remedies against the borrower and guarantors, without any restriction on first having to realise the security. [60] It is trite law that clear and unequivocal contractual terms are binding on the parties and must be upheld by the court. This was aptly summarised by Quay Chew Soon J in Malayan Banking Berhad v Arita Plastics Industries (M) Sdn Bhd & Ors [2023] 1 LNS 562: “The terms of the Security Documents are clear and the Defendants are bound by it. The court ought to uphold the same. ... The trust deed is a contract and “the court has a duty to defend, protect and uphold the sanctity of the contract entered between the parties”.” [61] I respectfully adopt the reasoning of Quay J. Parties cannot seek to circumvent their agreed contractual terms by raising arguments unsupported by evidence. It would be surprising if the Plaintiff who had expressly preserved its cumulative rights and remedies in writing, had somehow orally agreed to fetter those same rights. The Defendants' bare assertion of an understanding cannot withstand the plain meaning of the transaction documents. [62] Further, it is well-established that a lender may pursue all remedies against a borrower concurrently or successively, unless there is an express agreement to the contrary. The Federal Court in Low Lee Lian v Ban Hin Lee Bank Bhd [1997] 1 MLJ 77 approved the following passage from the Privy Council decision in China and South Sea Bank Ltd v Tan [1989] 3 All ER 839: “The creditor had three sources of repayment. The creditor could sue the debtor, sell the mortgage securities or sue the surety. All these remedies could be exercised at any time or times simultaneously or contemporaneously or successively or not at all.” [63] Here, far from there being an agreement to the contrary, the transaction documents expressly provide for the exercise of concurrent remedies by the Plaintiff. The Defendants cannot unilaterally rewrite the terms of the contracts. [64] The appointment of receivers also does not deprive the Defendants of utilising the charged property, as the 1st Defendant had contractually agreed not to dispose of the secured assets so long as sums remain due. The Defendants are therefore not prejudiced, as they are bound by the agreed terms of the Debenture. [65] Accordingly, viewing the evidence as a whole, I find that the Defendants have failed to show any bona fide triable issues which merit ventilation at trial. The express terms of the transaction documents negate the entirety of the Defendants' arguments on the three issues raised. The cumulative effect of the clauses in the Debenture, Facility Agreement and Guarantee is clear and admits of no other interpretation. The Defendants have not adduced any documentary evidence to support their assertions. The Defendants' purported defences on these issues are plainly unsustainable and bound to fail at trial. Whether the Defendants were under undue influence or duress from the Plaintiff when executing various instruments like the guarantee and settlement arrangements. [66] The Defendants raised the argument that they were under undue influence or duress from the Plaintiff when executing various instruments, including the Guarantee and settlement arrangements. The Defendants thus contend that there is a triable issue in respect of this allegation which warrants a full trial. [67] In response, the Plaintiff submitted that the Defendants' allegation is a mere bare assertion, unsupported by any particulars or evidence. The Plaintiff contended that the Defendants have not pleaded the necessary particulars of undue influence or coercion in the Defence and the affidavit in reply. Accordingly, the Plaintiff argued that the Defendants have failed to establish any factual basis for their argument, and as such, the defence of undue influence should be rejected outright as it is plainly a non-starter. [68] I have examined the Defence and the affidavit filed by the Defendants. I find that the Plaintiff's submission on this issue is well-founded. [69] It is trite law that a party who asserts the defence of undue influence or duress bears the burden of establishing the same. As stated by Zakaria Yatim J (as he then was) in Malaysian French Bank Ltd v Abdullah Bin Mohd Yusof & Ors [1991] 2 MLJ 475 at 478: “In their affidavits, the third and fourth defendants merely made bare allegations of undue influence induced by the first defendant. No particulars of undue influence were given in the affidavits. In my view a mere allegation is not sufficient to raise a defence of undue influence. ... In the circumstances, I am of the view that the third and fourth defendants have failed to raise the question of undue influence as a triable issue.” [70] The High Court in Mikimoto Co Ltd v Naditech Corporation Sdn Bhd & Ors [2017] MLRHU 787 applied the same principle in striking out a defence of undue influence, holding that: “A perusal of the Defence would disclose that D1- D3 had not pleaded the necessary particulars of undue influence which is fatal to this defence. Neither had they produced any evidence in their affidavits in reply in support of this serious allegation. Hence, no factual basis whatsoever was shown for this allegation to be considered.” [71] I respectfully adopt the reasoning of the courts in Malaysian French Bank and Mikimoto. In the present case, the Defendants have only made bald allegations of undue influence and duress in their Defence. No particulars of the alleged coercion have been pleaded. The affidavit in reply filed by the Defendants is also bereft of any details of the purported oppression or undue pressure exerted by the Plaintiff. The affidavit merely repeats the bare assertion that the “Defendants were coerced under pressure and duress of the Plaintiff” without more. [72] Such unsubstantiated and unparticularised allegations are insufficient to establish a triable issue. A proper defence of undue influence or duress requires the Defendants to plead with sufficient particularity the acts of the Plaintiff which are said to be coercive, the manner in which such conduct was oppressive, and the causative effect of the Plaintiff's acts on the Defendants' free will. Bare statements devoid of factual elaboration cannot constitute a viable defence. [73] Further, the timing of the allegation also gives me pause. The instruments which the Defendants now claim were tainted by undue influence were executed as far back as

If the Defendants had truly been coerced into the agreements, it is surprising that this assertion is only being raised now in 2024 when the Plaintiff seeks summary judgment. The court should be cautious in permitting defendants to avoid their contractual obligations by raising unmeritorious allegations at the eleventh hour without proper substantiation. [74] Accordingly, I find that the Defendants have failed to establish any bona fide triable issue in respect of undue influence or duress. The Plaintiff has shown that the Defendants have no viable defence on this issue and summary judgment should therefore be entered for the Plaintiff. [75] I also note that the High Court in Yayasan Melaka v Photran Corp Sdn Bhd & Anor [2012] 7 MLJ 1 cited by the Defendants had allowed a defence of undue influence and coercion to be ventilated. The case concerned an application by the first defendant to set aside a default judgment entered against it for RM9.2 million plus interest and costs in favor of the plaintiff. An issue that arose was whether the first defendant was induced or coerced into entering into the loan agreement with the plaintiff by illegitimate pressure, given the plaintiff's majority control over the first defendant. The court held that the defence of undue influence and coercion should be allowed to be argued, as the allegations were not frivolous and there were issues to be tried, rather than shutting out the first defendant at the outset. The court viewed the history and events leading up to the joint venture, and found that the defence of undue influence and coercion should be allowed to be ventilated. The first defendant pleaded that when required to pay RM4.6 million in 1997, the plaintiff imposed a condition that this sum, along with the earlier RM4.6 million paid, totalling RM9.2 million, be treated as a loan from plaintiff to first defendant. The first defendant alleged it was compelled to accept this condition as it urgently needed the funds. The court found that viewed in light of the joint venture relationship and plaintiff's majority control over the first defendant, the allegations of illegitimate pressure and inducement to enter the loan agreement should be allowed to be argued However, the present case can be distinguished as here, the Defendants have not produced any evidence whatsoever to support their assertion, unlike in Yayasan Melaka where there was apparently some evidence before the court. Each case must necessarily be evaluated on its own facts. On the materials before me, I find that the Defendants have failed to properly raise a triable issue as the assertion of undue influence remains a mere unsubstantiated allegation as a defence. Conclusion [76] Considering the totality of the facts and circumstances of the case as disclosed in the affidavit evidence, it was quite clear to me that the Plaintiff had clearly met the preliminary requirements in an Order 14 application in accordance with the principles established by National Company For Foreign Trade v Kayu Raya Sdn Bhd [supra ] and further, applying the leading Supreme Court case of Bank Negara Malaysia v Mohd Ismail Ali Johor & Ors [supra ] 1 CLJ 627. Accordingly, I held that the contentions of the Defendants do not amount to triable issues or constitute any reasonable defence. [77] It is therefore ordered that the Plaintiff's claim in the Statement of Claim is allowed whereby the Defendants shall pay to the Plaintiff as follows: a) Term Loan: RM22,214,168.76 due as at 18.1.2024 with interest thereon at the rate of 3.50% per annum above the Plaintiff's BLR, calculated on monthly rests, from 19.1.2024 to date of full payment; b) Revolving Credit Facility: RM58,655,239.57 due as at 18.1.2024 with interest thereon at the rate of 3.50% per annum above the Plaintiff's BLR, calculated on monthly rests, from 19.1.2024 to date of full payment; c) Costs of RM5,000.00 subject to allocatur; and d) Interest on the costs awarded at the rate of 5% per annum from the date of judgment to date of full settlement pursuant to Order 59 rule 24 of the Rules of Court 2012. 9 July 2024 ATAN MUSTAFFA YUSSOF AHMAD Judge Kuala Lumpur High Court (Commercial Division) Counsel: For the Plaintiff: Heng Yee Keat (Messrs Christopher Lee & Ong) For the Defendants: Ivanpal Singh Grewal (Messrs A.J. Ariffin, Yeo & Harpal)