The court found that consolidating related cases in one jurisdiction promotes judicial efficiency, as the guarantor's liability is contingent upon the borrower's breach of agreement, justifying the transfer of Suit 787 to the Ipoh High Court.

Introduction

[1] Before the court is an application by the 1st and 2nd Defendants to transfer the proceedings in Kuala Lumpur High court Suit No. WA-22NCC-787-11/2024 ("Suit 787') to the Ipoh High court pursuant to O 57 r 1 of the Rules of court 2012 (" ROC ") and/or s 23 of the Courts of Judicature Act 1964 ("CJA 1964").

[2] Having considered the submissions of both parties and the relevant legal authorities, I have come to the conclusion that the application should be allowed. These are my grounds.

Background Facts

[3] The Plaintiff, Export-Import Bank of Malaysia Berhad ("EXIM"), granted a term loan facility under an Overseas Project Financing Facility ("the Facility') to Superboom Projects Sdn Bhd ("the Borrower') vide a Facility Agreement dated 30 September 2016.

[4] The Facility was divided into two tranches: an OPF-1 Facility of up to USD20,000,000.00 and an OPF-2 Facility of up to USD22,000,000.00. By 27 November 2018, the total amount of USD20,000,000.00 under the OPF-1 Facility had been fully disbursed by the Plaintiff to the Borrower.

[5] The Defendants executed a Guarantee Agreement dated 2 November 2016 ("Guarantee Agreement") in favour of the Plaintiff to jointly, severally, unconditionally and irrevocably guarantee, as principal debtors and not merely as sureties, the repayment in full on demand of the outstanding sums owed to the Plaintiff under the Facility.

[6] On 24 November 2021, the Borrower's account had turned impaired following the Borrower's alleged failure to make timely payment of the quarterly interest due under the Facility on 23 November 2021.

[7] By way of a Notice of Demand dated 26 Julai 2022, the Plaintiff issued a written demand to the Borrower for payment of the 3rd instalment within fourteen days, failing which the Plaintiff reserved its right to terminate and recall the entire Facility.

[8] The Plaintiff subsequently issued a Notice of Termination and Demand dated 19 Ogos 2022 to validly terminate and recall the Facility with immediate effect, and to demand payment of the outstanding Secured Amount amounting to USD21,903,950.60 as at 19 Ogos 2022 within seven days.

[9] The Plaintiff claims that the total outstanding Secured Amount due and owing to the Plaintiff under the Facility as at 29 Julai 2024 is USD25,810,806.27.

[10] By way of letters dated 31 Julai 2024, the Plaintiff demanded that the Defendants make payment of the Secured Amount due within seven days. The Defendants have allegedly failed, refused and/or neglected to make the payment.

[11] On 8 November 2024, the Plaintiff commenced Suit 787 against the Defendants in the Kuala Lumpur Commercial court for recovery of the outstanding sums owed to the Plaintiff under the Facility.

[12] It is pertinent to note that there are three other related suits pending in the Ipoh High court:

a) A civil suit filed by the Borrower against the Plaintiff via Civil Suit AA-22NCC-1-01/2023 ("Suit 1") regarding the termination of the Facility;

b) Originating Summons No AA-24NCC-19-06/2024 ("OS 19") filed by the Borrower, the 1st and 2nd Defendants, and The Haven Sdn Bhd against the Plaintiff and