The burden of proof rests on the defendant to demonstrate a triable issue; mere allegations are insufficient to resist summary judgment.

[Summary Judgment]

Introduction

[1] This is an appeal to me by the appellant against a Sessions Court's order granting summary judgment in favour of the respondent for the sum of RM 600,000.00 with interest and RM 3,000.00 costs.

[2] The order of the Sessions Court dated 6 June 2024 can be seen in the Record of Appeal Part A [Enclosure 3] at pp 10 - 11. The Grounds of Judgment of the Sessions Court can be seen in the Additional Record of Appeal [Enclosure 4] at pp 3 to 28.

[3] The appellant is the defendant and the respondent the plaintiff at the Sessions Court. For ease of reference, parties will be referred to as plaintiff and defendant in my Grounds.

Loan

[4] The plaintiff is the executor of the Estate of Bong Yam Keng (Deceased) ("BYK").

[5] The plaintiff's claim is premised on the non-repayment of a loan of RM600,000.00 given by the late BYK to the defendant. The loan is evidenced by a Payment Voucher dated 29 November 2017 issued by BYK to the defendant.

[For the Payment Voucher see Record of Appeal encl 3 at p 64 and the Plaintiff's Supporting Affidavit encl 3 at p 44 para 7]

Security For Repayment

[6] As a security for repayment, the defendant issued an Ambank cheque No. 816748 dated 28 March 2018 in the name of BYK for RM600,000.00.

[For the cheque see Record of Appeal encl 3 at p 66 and the Plaintiff's Supporting Affidavit encl 3 at p 44 para 8]

Alleged Triable Issue

[7] The defendant resists summary judgment on the ground there is one triable issue. The defendant alleges the defendant's debt to BYK had been extinguished as the defendant had agreed to repay a debt owed by BYK to a person called Soon Choi Seng ["Mr Soon"].

[8] According to the defendant:

i. BYK owes USD 412,158 to Mr Soon;

ii. In 2019 there was a meeting between BYK, Mr Soon and the defendant's representative by the name of Chong Kon You@ Chong Kwan Yew ["Mr Tony"].

iii. Mr Tony suggested the defendant's debt owed to BYK to be considered repaid in exchange for the defendant agreeing to repay the debt owed by BYK to Mr Soon;

iv. The defendant alleged the agreement is evidenced by an undated and unsigned Letter of Acknowledgement & Undertaking. [See Record of Appeal Enclosure 3 at p 74].

[See the Defendant's Written Submissions in encl 8 at para 6].

[9] On 10 January 2025 I had dismissed the appeal with costs of RM8,000.00 subject to allocatur.

[10] On 5 February 2025, the defendant has appealed to the Court of Appeal. These are my Grounds of Judgment for my decision.

Facts Of The Case

[11] The plaintiff avers the following facts. References to documents will be made based on enclosure number and page number. For example, "E10/5" refers to encl 10 p 5 (PDF pagination number).

[12] By a "Grant of Probate" dated 16 July 2020 in Originating Summons No: WA-32NCVC-1005-07/2020 [E3/69], the plaintiff was granted Probate and was appointed as the executor of the Estate of the late BYK.

[13] On or around 29 November 2017, upon the defendant's request, BYK had given a loan of RM600,000.00 to the defendant ("Loan") [E3/71]. It was a mutual understanding between BYK and the defendant, a general agreement and/or implied terms, among others, for the business efficacy that the Loan given to the defendant ought to be repaid and/or returned by the defendant to BYK upon demand.

[14] As security for the repayment, the defendant had given an undated AMBANK Cheque numbered: 816748 for the amount of RM 600,000.00 ("Cheque") to BYK [E3/73]. However, thereafter, the defendant had repeatedly requested BYK not to deposit and/or