Richard Malanjum JCA:

On 10 February 2003 we dismissed the appeal of the appellant/defendant ('appellant') against the decision of the High Court allowing the application of the respondent/plaintiff ('respondent') to enter final judgment pursuant to O. 14 of the Rules of the High Court 1980(RHC).

In coming to our decision we indicated that we would give our reasons later. We do so now.

In its statement of claim the respondent prayed for the following:

i. the sum of RM2,929,452.05;

ii. interest at the rate of 15% per annum on the sum of RM2,500,000 from 17 September 1997 to date of full payment;

iii. costs;

iv. such other order or relief as deemed fit.

The appellant filed his defence on 20 February 1998 denying any liability and asserted that the purported agreement was a sham and thus the respondent should be estopped from relying on it. And the appellant averred,inter alia, that he did not obtain the advance for himself but only as a conduit for the respondent in its quest to ensure the increase in the cash flow of a company called the Labuan Securities Sdn. Bhd. ('the company') in which the respondent had 28.78% equity interest. It was further asserted by the appellant that the respondent went through him because he was a director of the company and that in turn the said sum given by the respondent became part of the RM5,000,000 he had lent to the said company.

And by way of summons in chambers dated 12 February 1998 supported by an affidavit of Koay Seng Lee affirmed on 9 February 1998 ('Koay's first affidavit') the respondent applied for summary judgment.

The appellant opposed the application and filed his affidavit in opposition affirmed on 26 February 1998 ('appellant's first affidavit').

The appellant's first affidavit was replied to by an affidavit of Koay Seng Lee affirmed on 28 March 1998 ('Koay's second affidavit').

Briefly it was the assertion of the respondent that at the request of the appellant it advanced the sum of RM2,500,000 to him. And such transaction was reduced in writing videan agreement dated 25 July 1996 ('the agreement') containing the terms of the advance.

In opposing the application the appellant referred to his defence filed and relied on the defences pleaded thereto. And he elaborated that the request for assistance was made by the then Chief Executive Officer of the respondent, Mr. Yip Yee Foo ('Yip'). According to the appellant it was Yip who came up with the idea of a loan agreement for the appellant to sign being part of the scheme to increase the cash flow of the company.

The appellant also referred to a document, Unsecured Subordinated Term Loan Agreement, which he claimed to have entered into with the company in respect of a loan of RM5,000,000 to the latter and in which the RM2,500,000 purported advance from the respondent became part of it.

As regards a letter which he signed pertaining to the alleged advance the appellant explained that it was at the behest of Yip and was made in order to help the respondent to explain to the Securities Commission concerning the said advance.

In reply to the assertions of the appellant the respondent through Kaoy's second affidavit stated that it had no knowledge of them and that Yip no longer worked for the respondent.

Hearing of the summons in chambers came before the senior assistant registrar who gave judgment for the respondent on 27 May 1998. Subsequently the appellant appealed to the judge in chambers who heard the appeal and affirmed the decision of the senior assistant registrar.

In his grounds of judgment the learned judge in the court below dealt with the three issues which he said were raised by the appellant, namely:

(a) that there were representations made by Yip;

(b) that those representations were binding on the respondent; and

(c) that the respondent is estopped from enforcing the agreement for the repayment of the sum advanced.

And in dismissing the appeal the learned judge found that there were no representations made since t