JUDGMENTBY: CHONG SIEW FAI J

This is an application by the defendant, Bank Pembangunan Malaysia Bhd (the bank) under O 18 r 19(1)(a), (b), (c) and (d) of the Rules of the High Court 1980 to strike out the writ of summons and the statement of claim of the plaintiff, Richard Lau Ming Hing @ Lau Richard MH (Lau), in this action.

For the bank, four affidavits were filed: one by its senior manager, Megat Zabidi bin Megat Husain, made on 23 October 1990; another by its advocate Libat Langub, made on 24 April 1991; the third, by Megat Zabidi affirmed on 9 December 1991 and the last, by Dato Anuarul Aini bin Mohd Perai affirmed on 18 February 1992. Lau himself had an affidavit in opposition made on 22 April 1991.

Laus claim in this action

In this action, Lau seeks to set aside the order of this court made on 21 July 1984 in Civil Suit No KG60 of 1983 between the bank as the plaintiff, and Lau and four others as the defendants. The said order made on 21 July 1984 (exh H annexed to Megat Zabidis first affidavit) decreed that Laus defence be struck out and that final judgment be entered against Lau in the sum of RM129,947.94 with interest and costs.

Consent order

Although the said order dated 21 July 1984 does not expressly state on it that it was made by consent, there can be no denial that it was a consent order. This is clear from the notes of proceedings (exh 1 annexed to Megat Zabidis first affidavit) relating to the banks application for summary judgment during which Mr George Lo of Mark Foong & Co, acting for Lau, stated on 21 July 1984 that his client (Lau) had no objection to the application. That being so, the omission to state in the order that it was made by consent does not affect the fact that it was so made. Darley (Trustee of Baines) v Tulley. In any event, Lau himself conceded that the order is a consent order (see para 3 of his affidavit). It also cannot be disputed that the order has been drawn up, and entered.

Laus grounds

Briefly, Laus grounds as pleaded in the present action for setting aside the order are (see the statement of claim):

(1) that he did not execute the guarantee forming the subject matter

of the action KG60 of 1983, and that he discovered this sometime

in May 1989;

(2) that the order of 21 July 1984 was obtained illegally, it being

for a larger sum if any at the time of entering of the order;

(3) that the bank failed to disclose such material fact during the

time of obtaining the order of 21 July 1984 and he had suffered

damages resulting from the said order and two unsuccessful

bankruptcy proceedings following thereupon.

Civil Suit No KG60 of 1983

For a better understanding of the background of this action, it is necessary to briefly relate Suit KG60 of 1983. In that action, the bank sued Lau and four others as guarantors under a guarantee in writing for a loan advanced to a principal debtor and interest in the sum of RM129,947.94, with further interest and costs. Lau was the fifth defendant in that action.

Paragraphs 7-10 of the statement of claim read thus:

7 By an agreement in writing dated 3 April 1980 the first,

second, third, fourth and fifth defendants agreed with the

plaintiff that in consideration of the plaintiff granting a loan

to Santiasa Hygienic Sdn Bhd, a company incorporated under the

Companies Act 1965, in Sarawak, Malaysia having its registered

office at No 57C & D, Lanang Road, Sibu, the first, second,

third, fourth and fifth defendants will guarantee the repayment

of the loan together with interest costs charges and all other

sums owing by the said Santiasa Hygienic Sdn Bhd to the plaintiff.

(8) The plaintiff accordingly advanced a sum of RM108,000 to the said

Santiasa Hygienic Sdn Bhd.

(9) On 31 May 1992 the said Santiasa Hygienic Sdn Bhd was indebted to