The court affirmed that a summary judgment does not require leave if no triable issue exists, even with pending judicial management applications.

[1] Enclosure 10 is the Plaintiff application for summary judgment against the 2nd and 3rd Defendant under O 14 r 1 Rules of 2012.

[2] Enclosure 12 is the Defendants application to stay this action pending disposal of the 1st Defendant's application for a Judicial Management Order in Kuala Lumpur High Court, Originating Summon No: WA-28 JM-8-10 / 2018. Parties agreed that both the enclosure to be heard together as it is inter-related.

Chronology Of Events

[3] The chronology of events are as follows:

2nd & 3nd Defendant Contention In Enclosure 10

a) Enclosure 10 should be stayed pursuant to s 410 of the Companies Act 2016 .

b) The Defendants did not receive the Plaintiff's notices dated 6 July 2018 and 1 August 2018.

2nd & 3nd Defendant Contention In Enclosure 12

a) Pursuant to the JMO application, the 1st Defendant is protected by moratorium under s 410 of the Companies Act 2016 .

b) If the JMO application is allowed, the present application will be rendered academic.

Plaintiff Arguement In Enclosure 10

a) No triable issue. No leave is required from the Court. The JMO application has no effect against the 2nd & 3rd Defendant as they agreed to be liable as a principle debtors.

b) There was proved of notices issued by the Plaintiff's solicitors to the Defendants on 6 July 2018 & 1 August 2018. This can be found in Exhibits ARB 14 - 17 of encl 11 and Exhibits ARB 1 - ARB 3 of encl 17.

Plaintiff Arguement In Enclosure 12

a) Defendants failed to establish any special circumstances to justify the grant of a stay.

b) The JMO does not affect the obligations of the 2nd & 3rd Defendants under the personal guarantee.

Findings

[4] In an application under O 14, the Court has to be satisfied of affidavit evidence that the defence has not only raised an issue, but also that the said issue is triable. To me, no leave is required for the Plaintiff's to filed notice of application for summary judgment. The JMO pursuant to s 410 of the Companies Act only concerns the 1st Defendants and the Plaintiff is not proceeding against the 1st Defendant. 2nd & 3rd Defendant being an individual is a separate legal entity from the 1st Defendant. Under the Personal Guarantee, 2nd & 3rd Defendant agreed jointly and severally guarantee payment, on demand, all money due and owing by the 1st Defendant to the Plaintiff. Both the said Defendants failed to pay to amount due to the Plaintiff in the sum of RM38, 607,412.44. Hence both of the Defendants are liable as principle debtor. I am in no hesitation to say that the Defendants have failed to show any triable issue in answer to the Plaintiff application for summary judgment in encl 10.

[5] On the issue that the Defendants did not received the notices send by the Plaintiff to the Defendants, it is clear from the Affidavit In Support and Affidavit In Reply of Muhammed Uzman bin Muhammed Faleel that notice dated 6 July 2018 and 1 August 2018 has been issued to the Defendants with proof of service respectively marked as Exhibit ARB - 14 to ARB 17 of encl 11 and Exhibits ARB 1 to ARB 3 of encl 17. With that, the Defendants contention must certainly failed.

[6] The Defendants application for stay in encl 12 pending the disposal of the 1st Defendants application for a JMO must also be dismissed. The grounds on which stay should not be granted have already been indicated by me at para 1 of my finding and I do not intend to repeat it. In the upshot, it is my view that the Defendants have not succeeded in establishing the existence of special circumstances.

Conclusion