The court upheld summary judgment, finding no substantive triable issues raised by the defendants regarding alleged misrepresentations and contractual compliance.

[1] This is an appeal by the appellants (defendants in the High Court) against the decision of the High Court at Kuala Lumpur allowing summary judgment pursuant to O 14 Rules of 2012 to be entered against the appellants for breach of an Al Bai Bithamin Ajil financing facility availed to the 1st appellant wherein the 2nd and 3rd appellants stood as guarantors.

[2] The parties are referred to in this judgment as they were referred to at the High Court.

[3] Vide its writ and statement of claim dated 27 April 2014, the plaintiff sought the following orders:

3.1 Judgment for the sum of RM7,748,713.13;

3.2 Ta'widh (late compensation charges);

3.3 Costs of this action; and

3.4 Any other reliefs deem necessary by the Court.

[4] On 9 September 2014, the plaintiff filed an application for summary judgment. After hearing the arguments and submissions of both parties, on 28 January 2015, the learned judge allowed the plaintiff's application and summary judgment was entered against the defendants for the sum of RM7,748,713.13 together with the ta'widh (late payment charges). Hence this appeal before us.

The Brief Background Facts

[5] Pursuant to the Letter of Offer dated 22 June 2007 ('LO'), the plaintiff had availed the 1st defendant Al Bai Bithamin Ajil financing facility in the sum of RM6,400,000.00 (the financing). Following thereto, the plaintiff agreed to sell its asset to the 1st defendant for a staggered payment of RM7,790,535.96 ('sale price'). The said purchase was subject to the terms and conditions contained in the LO, Asset Sale Agreement ('the ASA') and Asset Purchase Agreement ('the APA'), both also dated 1 October 2007.

[6] The 1st defendant agreed to accept the plaintiff's offer subject to the terms and conditions contained in the abovesaid agreements.

[7] The purpose of the facility availed was to part finance the cost of the 1st defendant's Fish Breeding Project using High-Tech 'Fish Protech Technology' for one building only to be undertaken on a piece of land (Lot 1131).

[8] Pursuant to item 7 of the LO, the 1st defendant had agreed to pay the sale price by way of instalments effective from the first month from the date of disbursement.

[9] Pursuant to the Guarantee and Indemnity Agreement dated 1 October 2007, the 2nd and 3rd defendants had jointly and severally guaranteed the due performance of the 1st defendant's obligations under the said agreements. The 2nd and 3rd defendants had also agreed to pay upon demand the Sale Price and all sums due and payable by the 1st defendant to the plaintiff and had agreed upon demand to indemnify the plaintiff on a full indemnity basis for all costs, charges and expenses including legal costs.

[10] The 1st defendant had breached the said agreement by failing and neglecting to pay the installments due and payable under the said agreement. On 18 April 2014, the plaintiff caused a Notice to Recall to be issued to the 1st defendant.

[11] The 1st defendant failed to comply with the said Recall Notice, thus prompting the plaintiff to commence this civil action against all the defendants. The plaintiff then filed an application for summary judgment.

[12] The defendants contended that there were triable issues as well as that the facts of the case are far from simple on the account of the following:

a. The defendants had participated in a Government-promoted scheme known as 'Fish Protech Technology' from Australia.

b. This scheme was promoted extensively by the plaintiff and three other parties namely Lembaga Kemajuan Ikan Malaysia (LKIM), Majuikan Sdn Bhd and Majuikan Fish Protech Sdn Bhd (hereinafter referred to as the third parties).

c. The plaintiff and the third parties had made oral representations that the said Fish Protech Technology cannot fail due to its overwhelming success in Australia and the minimum production would be 120 tons a year.

d. The plaintiff and the