JUDGMENT

Leong Wai Hong J:

[Summary Judgment]

Introduction

[1] This is a summary judgment application dated 16 August 2024 [Enclosure 10] filed by the plaintiff. It was first fixed for hearing on 13 January 2025 but could not proceed as counsel for the defendants said she has no valid practising certificate. I then adjourned the hearing for counsel to rectify her locus to attend court.

[2] I then heard the application on 17 April 2025. Learned counsel for the plaintiff was present. Learned counsel for the defendants was absent. No reason was given to court for the absence.

[3] The plaintiff's counsel had filed a written submission to support his application. The defendants' counsel didn't file any written submission to oppose the summary judgment application. No reason was given to court for the non-compliance with court's direction to counsel to file written submission.

[4] After reading the pleadings, affidavits filed and the plaintiff's counsel's written submission I allowed the summary judgment with costs of RM5,000.00 on the ground there are no triable issues.

[5] To my surprise, the defendants have appealed to the court of Appeal on 15 May 2025. These are my Grounds of Judgment.

Facts Of The Case

[6] The plaintiff is a bank. The 1st defendant is a customer of the plaintiff. The 2nd to 4th defendants are guarantors for the loans taken by the 1st defendant from the plaintiff.

[7] The plaintiff has granted the 1st defendant a "CPL Monthly Rest AFSB" loan facility ("Loan Facility") based on Offer Letters dated 13 November 2019, 17 July 2020, and 8 January 2021 and a Facility Agreement dated 6 July 2020 with account number 88820006007606 for an amount of RM 2,125,000.00 [See encl 11 supporting affidavit para 7 Exhibit AS-1].

[8] The 2nd defendant LX Mode (M) Sdn Bhd signed a Corporate Guarantee Agreement with the Plaintiff dated 3 August 2020 to guarantee the repayment of the Loan Facility. [See encl 11 supporting affidavit para 7 Exhibit AS-1].

[9] The 3rd defendant Zaharudin Bin Zainol Rashid [IC No.: 600521-02-5289] and the 4th defendant Eddee Dzulkarnein Bin Zaharudin [IC No.: 901125-02-5155] signed a "Guarantee and Indemnity" agreement dated 3 August 2020 with the plaintiff to guarantee the repayment of the Loan Facility. [See encl 11 supporting affidavit para 7 Exhibit AS-1].

[10] The 1st defendant has failed to pay the monthly instalments and overdue payments under the Loan Facility. [See encl 11 supporting affidavit para 10 Exhibit AS-2].

[11] By letters all dated 29 May 2024 the plaintiff demanded from the defendants the repayment of the Loan Facility. The defendants failed to repay. [See encl 11 supporting affidavit para 10 Exhibit AS-2].

[12] The plaintiff filed a suit and applied for summary judgment.

Defence And Affidavit Filed By The Defendants To Resist The Summary Judgment Application

[13] In the Defence [See encl 8] the defendants didn't plead any substantive defence other then to put the plaintiff to proof of its claim.

[14] The defendants filed one affidavit dated 5 September 2024 affirmed by the 3rd defendant to resist the summary judgment application. [See encl 12 defendants' affidavit in reply].

[15] In this short affidavit, the defendants made bare denials without proof.

[16] The defendants also averred that they had made a request to the plaintiff to restructure their loan repayment and attach their letter to the plaintiff which is undated in encl 12 the defendants' Reply Affidavit in Exhibit ZZR-1.

The Law

In An Order 14 Application The Burden Of Proof To Show A Triable Issue Is On The Defendants

[17] The Federal court in Cempaka Finance Bhd v. Ho Lai Ying & Anor; [2006] 2 MLJ 685; [2006] 3 CLJ 544; [2007] 1 AMR 525 FC ["Cempaka Finance"] has held that in an O 14 application the burden is not on the plaintiff to prove his case. Steve Shim CJ (Sabah & Sarawak) said at p 551:

Quite clearly, the court of Appeal has put the burden on the plaintiff to prove his case in an O 14 application. With respect, that cannot be the correct