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2025 MarsdenLR 4642
HIGH COURT MALAYA SHAH ALAM
CHONG BOON HENG – Appellant
Versus
KAJANG ROCKS PREMIX SDN BHD – Respondent
[Suit No: BA-22NCvC-413-10/2022]
A party cannot claim fraudulent concealment of a document already known to them and relevant to ongoing proceedings.
Headnote:(A) Civil Procedure - Summary Judgments - Fraudulent Concealment - The Plaintiff sought to invalidate an Order of Summary Judgment on the grounds of alleged fraudulent concealment of a Credit Application Form. The Court ruled that there was no fraudulent concealment as the Plaintiff, being a director, had knowledge of the document and was a party to the original suit. (Paras 2, 4, 8)
(B) Fraud - The Plaintiff's claim of fraud was rejected as he had prior knowledge of the subject matter and failed to raise it during the previous proceedings. (Paras 5, 9)
Facts of the case:
The Plaintiff filed an action to set aside a summary judgment relating to a guarantee for the indebtedness of GNSB, alleging fraudulent concealment of a Credit Application Form, which the Court found was not concealed as the Plaintiff had signed it.
Findings of Court:
The action was struck out due to its unsustainable nature, with costs awarded to the Defendant.
Issues: The primary issue was whether fraudulent concealment existed concerning the 2018 Credit Facility, which the Plaintiff claimed was not disclosed to him.
Ratio Decidendi: The Court determined that the Plaintiff's prior knowledge and direct involvement negated any claim of fraudulent concealment, leading to the striking out of the suit as unsustainable.
Result: The Plaintiff's action was dismissed with costs.
| Table of Content |
|---|
| 1. plaintiff seeks to invalidate court order (Para 1 , 2) |
| 2. fraudulent concealment of evidence claimed (Para 3 , 4) |
| 3. existence of pre-existing guarantees (Para 5 , 6) |
| 4. awareness of the credit facility negates concealment claim (Para 7 , 8) |
[1] The Plaintiff filed this action to invalidate an Order of Court dated 15 September 2021 ("Impugned Order") made in Shah Alam High Court Suit No: BA-22NCvC-21-01/2020 ("Suit 21").
[2] In Suit 21, the Defendant had sued the Plaintiff on a Guarantee Agreement dated 7 September 2004 that guaranteed the indebtedness of one Generasi Nirwana Sdn Bhd ("GNSB") for goods sold and delivered. The Impugned Order was a final order for summary judgment entered against the Plaintiff.
[3] GNSB was wound up on 16 March 2021 about 15 months after Suit 21 was filed in January 2020. The Impugned Order was obtained a year and 8 months or so later on 15 September 2021 when the Plaintiff failed to raise any triable issues.
[4] The basis for this action is that the Impugned Order was allegedly obtained by fraud, in that the Plaintiff claims to have "discovered" a Credit Application Form dated 16 July 2018 submitted by GNSB to the Defendant for credit without the need for a guarantor ("2018 Credit Facility"). The Plaintiff claimed that it was fraudulently concealed from him and the Court by the Defendant.
[5] Quite apart from the question of whether the 2018 Credit Facility was relevant to GNSB's accrued and outstanding debt in Suit 21, the threshold question for determination in this action was whether there was any fraudulent concealment of the 2018 Credit Facility as alleged by the Plaintiff.
[6] According to the Defendant, the debt in Suit 21 had accrued under a pre-existing credit facility secured by the Plaintiff's personal guarantee. The 2018 Credit Facility did not require an additional personal guarantee because there was already one in operation to secure the debts of GNSB.
[7] The Plaintiff was the director of GNSB who signed the pre-existing credit facility, the personal guarantee as well as the 2018 Credit Facility. The Plaintiff was also very much a party to Suit 21. In other words, the 2018 Credit Facility was not a secret document that the Plaintiff had no prior knowledge of.
[8] In the circumstances, there could not have been any fraudulent concealment of the 2018 Credit Facility from the Plaintiff in Suit 21. He was aware of it since he signed it, but did not see fit to raise it in Suit 21 at any material time.
