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2023 MarsdenLR 1864
HIGH COURT MALAYA KUALA LUMPUR
SMALL MEDIUM ENTERPRISE DEVELOPMENT BANK MALAYSIA BERHAD – Appellant
Versus
STARFUSION SDN BHD & ORS – Respondent
[Civil Suit No: WA-22NCC-571-11/2022]
The court held that a summary judgment can be granted if the defendant fails to raise any triable issue, and the limitation period can be reset by part payments acknowledging debt.
Headnote:(A) Rules of Court 2012 - Order 14 - Summary judgment application - Plaintiff's application for summary judgment against 1st Defendant allowed, while the 2nd to 4th Defendants' application to strike out dismissed - Plaintiff provided revolving working capital facility and bank guarantee to 1st Defendant, with guarantees from the 2nd to 4th Defendants - Notice of demand issued for payment of arrears, with part payments received - Court found issues raised by Defendants not triable and ruled Plaintiff entitled to judgment. (Paras 1, 4, 24, 25, 46)
(B) Summary Judgment - The Court must determine whether the Defendant has satisfied it that there is an issue or question in dispute which ought to be tried - A Defendant must show an arguable issue that requires a trial; otherwise, summary judgment may be granted. (Paras 16, 18, 24)
(C) Limitation Period - The Court found that the Plaintiff's claim was not time-barred as the last payment made by the 1st Defendant reset the limitation period, allowing the suit filed in November 2022 to proceed. (Paras 33, 34)
| Table of Content |
|---|
| 1. application for summary judgment. (Para 1 , 2 , 3) |
| 2. background on the facility agreement. (Para 4 , 5 , 6 , 7 , 8 , 9 , 10 , 11 , 12 , 13) |
| 3. defendants' objections to summary judgment. (Para 14 , 15) |
| 4. court's function in summary judgment applications. (Para 16 , 17 , 18 , 19 , 20 , 21 , 22 , 23) |
| 5. findings on the preliminary requirements. (Para 24 , 25 , 26) |
| 6. time-bar arguments by defendants. (Para 27 , 28 , 29 , 30) |
| 7. plaintiff's rebuttal to time-bar arguments. (Para 31) |
| 8. court's view on triable issues. (Para 32 , 33 , 34) |
| 9. assessment of d1's arguments and evidence. (Para 35 , 36 , 37 , 38 , 39 , 40 , 41 , 42 , 43 , 44) |
| 10. conclusion and order for summary judgment. (Para 45) |
Introduction
[1] Enclosure ("Enc") 12 is the Plaintiff's application for summary judgment pursuant to O 14 of the Rules of Court 2012 (" ROC 2012") against the Defendants.
[2] Enc 12 was heard together with Enc 10 which was the 2nd to 4th Defendants' application to strike out the Writ and Statement of claim ("SOC") pursuant to O 18 r 19(1)(b) and (d) of the Rules of Court 2012 (" ROC 2012") and/or under the Inherent Jurisdiction of the Court.
[3] I had allowed Enc 12 against the 1st Defendant (D1) only, dismissed Enc. 10 with costs to the Plaintiff on 15 June 2023, and given broad reasons for my decisions. D1 has appealed against the decision in Enc 12. This judgment contains the full reasons for my decision.
Background
[4] At the request of D1, pursuant to a Letter of Offer dated 29 January 2007, Letter of Change dated 21 March 2007 (collectively referred to as "the Letter of Offer"), Facility Agreement dated 23 February 2007 and Supplemental Agreement dated 30 March 2007 (collectively referred to as "the Facility Agreement"), the Plaintiff had provided D1, a revolving working capital facility and a bank guarantee ("the Facility") to finance D1's working capital and bank guarantee requirement to perform the contract entered with Felda Prodate Systems Sdn Bhd or other contract awarding party as agreed by the Plaintiff subject to the terms and conditions as contained in the Letter of Offer and the Facility Agreement. The Facility comprised:
i. revolving working capital facility of RM600,000.00; and
ii. bank guarantee in the sum of RM67,500.00.
[5] In consideration of the Plaintiff granting and continuing to grant the Facility to D1, the Second Defendant ("D2"), Third Defendant ("D3") and Fourth Defendant ("D4") executed a Guarantee dated 23 February 2007 ("the Guarantee") to jointly and severally, unconditionally and irrevocably agreed with the Plaintiff, undertaken and guaranteed as principal obligors and not merely as sureties the payment of all sums of money which may from time to time be owing or remain due and unpaid to the Plaintiff by the Borrower together with all costs, charges and expenses subject to the terms and conditions as stipulated in the Guarantee.
[6] The Plaintiff issued a notice of demand dated 26 August 2008 against the Defendants respectively for payment of arrears. The Plaintiff received 3 part payments of RM15.00, RM9,994.68, RM56,249.19 totalling RM66,258.87 on 1 August 2011.
[7] It is not disputed that by e-mail dated 28 April 2017 (exhibit DD-18), D2 as a director of D1, wrote to the Plaintiff and proposed repayment of the outstanding amount under the Facility by:
(i) an upfront payment of RM5,000.00; and
(ii) monthly repayment in the sum of RM1,500.00 for a period of 12 months (commencing in June 2017) and thereafter, the monthly repayment amount will be reviewed by the Plaintiff.
[8] It is also not disputed that pursuant to the e-mail, D1 made payment of a sum of RM5,000.00 by Maybank Banker's cheque no 052512 dated 5 May 2017 (exhibit DD-3).
[9] No further payment was received by the Plaintiff thereafter.
[10] The Plaintiff terminated the Facility Agreement and recalled the entire total outstanding sum under the Facility vide the notice of termination cum demand dated 5 July 2017 to
