JUDGMENT

Muhammad Adam @ Edward Abdullah JC:

(encl 11)

Introduction

[1] The Plaintiff was a former director of the Second Defendant. The First Defendant is a director of the Second Defendant.

[2] The Plaintiff took out an originating summons seeking declaratory relief against the Defendants relating to a Deed of Agreement and Indemnity dated 30 March 2021 between the Plaintiff and the Defendants ("the Deed").

[3] The Plaintiff is also seeking an order of this Court to compel the Defendants, among others, to take all reasonable and necessary steps to set aside a Judgment in Default of Appearance obtained by a third party against the Plaintiff and the Defendants in another suit.

[4] The Defendants took out a notice of application to convert the originating summons to a writ action. The Plaintiff opposed the application.

[5] I dismissed the application. The Defendants appeal. This is my judgment for dismissing the application.

Background Facts

[6] The Plaintiff was a director of the Second Defendant from 12 February 2019 to 24 May 2023.

[7] Sometime in December 2020, the Second Defendant obtained a financing facility of RM1,000,000.00 ("Facility") from Malaysia Debt Ventures Berhad ("MDV"). The Plaintiff and the First Defendant stood as guarantors for the Facility.

[8] The Plaintiff and the Defendants then executed the Deed.

[9] The salient terms of the Deed are as follows:

a) Pursuant to Letter of Offer dated 29 December 2020 ("Letter of Offer"), Malaysia Debt Ventures Berhad ("MDV") has offered to Business Pixel Sdn. Bhd. (Registration No. 201501009352 (1134687-V) ("Company") a Technology Startups Funding Relief Facility of up to Ringgit Malaysia One Million (RM1,000,000.00) only ("Facility") and was accepted by the Company on 11 January 2021.

b) At the request of the [First Defendant], the [Plaintiff] had agreed to be a named director of the Company arising therefrom, the [plaintiff] is named as a personal guarantor ("Guarantor") under the Facility, alongside the [First Defendant] (a fellow director).

c) The [First Defendant] intends to take on the complete responsibilities of the [Plaintiff] as the Guarantor for the Facility and wishes to fully protect the [Plaintiff] financially and from any potential future claims arising from being named as a Guarantor under the Facility document.

d) At the request of the [First Defendant], the [Plaintiff] agrees to be the Guarantor for the Facility and the Company and the [First Defendant] wish to compensate the [Plaintiff] for exposure to enhanced financial risk from being named a Guarantor under the Facility subject to and upon the terms and conditions contained herein.

[10] The Deed also provides for the following terms:

• In consideration of the [Plaintiff] agreeing to be the Guarantor and as a director of the Company, the First Defendant in his personal capacity and/or the Company (as the case may be) hereby irrevocably and unconditionally agrees and undertakes to each and every one of the following:

a) to comply punctually with all payment obligations in relation to the Facility:

b) to indemnify and keep the [Plaintiff] indemnified at all times and hold the [Plaintiff] harmless from and in respect of all Losses (as defined herein) which may be suffered, sustained or incurred by the [Plaintiff] directly or indirectly as a consequence of, in connection with being a director of the Company and/or being the Guarantor for the Facility;

c) Upon the termination or resignation of the [Plaintiff], the Company shall immediately cause the removal of the [Plaintiff] as the Guarantor of the Facility;

[11] The Plaintiff resigned as a director of the Second Defendant on 24 May 2023.

[12] On 25 August 2023, MDV filed an action against the Plaintiff and the Defendants to claim a sum of RM999,693.75 under the Facility ("MDV Suit"). MDV has obtained a judgment in default of appearance against the Plaintiff on 30 October 2023.

[13] The Plaintiff says the effect of the terms of the Deed is to cause the removal of the Plaintif