This was an application for summary judgment under O 14 of the Rules of the High Court 1980 arising out of an action by the plaintiffs, a bank, against the defendants seeking enforcement of a contract of guarantee and indemnity dated 24 August 1982 whereby, in consideration of the plaintiffs granting to the Butterworth Marketing Consultant Sdn Bhd, their customer, certain banking facilities, that is to say, (a) a secured overdraft up to $50,000; (b) letters of credit/trust receipts up to $1,350,000; (c) a fixed loan of $100,000; (d) a clean overdraft against outport cheques amounting to $50,000; and (d) bank acceptances for $100,000, amounting in all to $1,650,000, the defendants who were directors of the customer, had covenanted to pay all sums due, costs and charges payable by the customer.

In pursuance of the said guarantee and indemnity, the plaintiffs had granted the banking facilities aforesaid to the customer which, together with interest, commission and bank charges, amounted to $1,221,505.20, at the date of commencement of the action. In the event, the customer company was wound up, and the plaintiff commenced the action herein alleging in the affidavit filed in support of the application for summary judgment that there was no defence to the action and that the appearance filed was merely to obtain delay.

Before me, counsel for the defendants took two points. In the first place, it was contended that the action herein was premature in that no notice of demand for the recovery of the amounts aforesaid had been served upon the defendants. The case of Mok Hin Wah & Ors v UMBC [1987] 2 MLJ 610 was cited in support. Counsel for the plaintiffs replied (without challenge by counsel for the defendants) that although nowhere in the affidavit filed in support of the application for summary judgment was any mention made of the fact that a notice of demand had been served upon the defendants, the true position was that there had been such service and he undertook to file an affidavit to repair the omission.

In the circumstances, I accepted the statement from the Bar by counsel for the plaintiffs, and saw nothing in the point. I would add that counsel for the plaintiffs did subsequently file a supplementary affidavit affirmed to on 6 April (encl 18) exhibiting the notice of demand which had been duly served upon the defendants.

In the second place, it was submitted by counsel for the defendants that notwithstanding the terms and conditions of the guarantee and indemnity, arising from representations made by the plaintiffs' manager to the defendants there had been 'an understanding' that the plaintiff would only proceed against the defendants for any sums due and owing by the customer to the plaintiffs after the plaintiff had taken action against the customer company by enforcing a charge executed as security for the banking facilities aforesaid. The case of Lesco Development Corp Sdn Bhd v Malaysia Building Society Bhd [1988] 2 MLJ 184 was cited in support.

In my opinion, the Evidence Act 1950, by s 91 excludes extrinsic evidence being adduced of the terms of a document by providing that no evidence may be given in proof thereof except the document itself and by s 92 an interdict is imposed on the admissibility of extrinsic evidence being adduced by the parties thereto in variance or in contradiction or in addition or in substraction of the terms of a document. (Emphasis added.)

The English case of John Pym v Robert Campbell & Ors (1856) 119 ER 903 provides a good illustration of the provisions of ss 91 and 92. In that case, Erle J said at p 904:

The point made is that this is a written agreement, absolute on the face of it, and that evidence was admitted to show it was conditional and if that had been so it would have been wrong. But I am of the opinion that the evidence showed that in fact there was never any agreement at all. The production of a paper purporting to be an agreement by a party, with his signatur