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2012 MarsdenLR 392
HASNAH MOHAMMED HASHIM
UNITED OVERSEAS BANK (MALAYSIA) BHD – Appellant
Versus
M-PACIFIC CABLE SDN BHD & ORS – Respondent
A guarantor cannot retroactively dispute the amount owed after a summary judgment is granted, especially if timely payments were not made against the debtor's liabilities.
Headnote:(A) High Court Rules 1980 - Order 14 - Summary judgment - Guarantor's liability - Judgment entered against the guarantor for amounts due from the principal debtor, which was deemed regular despite the guarantor's objections regarding undisputed payments. The court emphasized that the judgment amount must reflect the actual amount due, as supported by legal precedents. (Paras 5, 9)
(B) Irregularity of Judgment - The applicant's argument for setting aside the judgment based on alleged excessive amounts was rejected as the applicant failed to demonstrate merits in defense and did not dispute liability. (Paras 7, 10)
Facts of the case:
The respondent sought recovery of debts owed by the 1st Defendant under banking facilities, with the applicant serving as the guarantor. Summary judgment was initially granted against the applicant citing amounts due without considering the payments made against the debt.
Findings of Court:
The court concluded that the judgment was regular, considering the timing of payments and affirmed the applicant's liability.
Issues: The main questions addressed were whether the judgment sum should be adjusted based on payments made after the due date and the merits of the applicant's defense.
Ratio Decidendi: The judgment was upheld since the applicant could not show substantial grounds to contest the summary judgment, and payments received post-due date did not warrant adjustments.
Result: Application to set aside the judgment dismissed.
Enclosure 32 is the 2nd Defendants application to set aside the judgment entered against the 2nd Defendant on 7.4.2010 pursuant to Order 14 Rules of the High Court 1980. The Application is supported by an Affidavit in Support affirmed by Wong Chue Seng on 4.8.2011 and affidavit in reply dated 19.9.2011. The Affidavit in reply of the Plaintiff/Respondent is affirmed by Tan Mei Lin on 6.9.2011.
Brief Background:
The Respondents claim against the Applicant is for monies due and owing by the 1st Defendant pursuant to banking facilities granted to the 1st Defendant. The Applicant is a guarantor under the said banking facilities. The Respondent filed an application for summary judgment against the Applicant. After hearing the submissions of both parties the High Court granted summary judgment in favour of the Plaintiff on 7.4.2010. The judgment was amended on 25.11.2010.
The Applicant submitted that the Respondent omitted to make deductions of RM570,000.00 (proceeds of sale), RM550,000.00 (payment by receiver and manager of 1st Defendant towards reducing the debt owed) and RM1,500,000.00 received by the Respondent on 3.2.2010, 8.2.2010 and 19.2.2010 from the judgment sum. It is the contention of the Applicant that the amount is excessive and therefore the judgment is irregular and ought to be set aside.
The case of Lee Tain Tshung v. Hong Leong Finance Bhd. where the Court referred to the case of Cheow Chew Khoon v. Abdul Johari bin Abdul Rahman (1995) 4 CLJ 127; where it is stated by the that the amount for which a judgment is entered must be limited to the amount actually due was referred by the learned Counsel for the Applicant.
The Respondent submitted that the judgment sum ordered by the Court on 7.4.2010 was as at 1.3.2009. The 3 receipts were received on the dates after 1.3.2009. Therefore no deductions should be made to the judgment sum. The judgment obtained is therefore regular and effective.
Reasons for the Decision:
After considering the submissions as well as the authorities submitted by the learned counsels this court finds that the judgment entered was regular and should not be set aside.
The Applicant failed to show that there are merits in his defence. In allowing the summary judgment the court would have considered whether there are triable issues. Furthermore the Applicant did not dispute that he is liable to pay the Respondent for the sum due and owing.
