JUDGMENT

Abdul Malik Ishak J:

Introduction

[1] This was an appeal by the defendants in encl. 14 against the decision of the learned senior assistant registrar allowing the plaintiff's application to enter a summary judgment against the defendants for the sum of HK$451,421.85 or alternatively the sum of RM259,110.97 which constituted the balance from the sum of HK$1,000,000 together with interest and costs.

Facts Of The Case

[2] The plaintiff was a company having its office in Hong Kong and was involved in floral business there.

[3] On or about September 1995, the plaintiff had agreed to grant a friendly loan to the first defendant for the sum of HK$1,000,000 on the second defendant's request to assist the first defendant in its business. By a letter dated 2 September 1995, the second defendant had given his account number in Chung Khiaw Bank (M) Berhad to the plaintiff in order to facilitate the sum of RM320,000 to be remitted to him. On 12 September 1995, the plaintiff instructed its bank to remit the loan for the sum of RM320,000 into the second defendant's account. As a consideration for the plaintiff granting the loan to the first defendant, the second defendant had signed a letter of guarantee dated 11 September 1995 whereby the second defendant agreed to guarantee the said loan together with the interest given to the first defendant and the second defendant too shall be made liable in the event the first defendant failed to repay the loan together with interest thereon to the plaintiff. By a letter dated 4 March 1997, the second defendant's wife informed the plaintiff in regard to the cancellation of the cheques and had furnished ten cheques for the payment of the said loan. By a debit note dated 22 April 1998, the plaintiff had demanded from the first defendant for the balance of HK$451,412.85 or alternatively the sum of RM259,110.97. On 3 June 1998, the plaintiff through its solicitors had demanded from the first and the second defendants the outstanding sum of HK$451,412.85 or alternatively the sum of RM259,110.97 as at 30 April 1998.

Analysis

[4] The defendants argued that the payments made by the first defendant to the plaintiff were meant for the imports of the flowers and that the transactions between both the parties were related to the floral business. With respect, these arguments constituted bare allegations unsupported by any relevant documentary evidence.

[5] Exhibits "GHC1" and "GHC2" of the defendants' additional affidavit clearly showed that the transactions between the plaintiff and the person by the name of "La Chew" as the buyer together with the invoices issued by the plaintiff clearly stated that the person by the name of "La Chew" would make the necessary payment to the plaintiff and not to the first defendant as alleged in the defendants' additional affidavit. Furthermore the defendants' averments in their affidavits were inconsistent with the second defendant's statements and the available documentary evidence.

[6] The first inconsistent statement would be as follows:

(a) In encl. 6 at para. 9, the second defendant averred as follows:

Pada kesemua masa material defendan pertama telah mengimport barangan bunga-bungaan antara lain daripada plaintif dan defendan telah membuat bayaran kepada plaintif secara menjual dan membeli.

(b) In encl. 13 at para. 8, the second defendant averred as follows:

.... dan justeru itu cek-cek yang dirujuk dalam 'eksibit tersebut' adalah berkenaan bayaran-bayaran yang telah dibayar untuk barangan yang dihantarserah kepada defendan pertama dan bukan tujuan membayar plaintif seperti yang dimaksudkan dalam perenggan 10 dalam 'afidavit tersebut'.

(c) In sharp contrast would be para. 7 of the defendants' additional affidavit and there the second defendant averred as follows:

Semua invois berkenaan iaitu no: 92489 dan 92490 bertarikh pada 16hb September 1997 dibuka atas nama agen tersebut tetapi adalah persetujuan plaintif dan defendan bahawa defendan pertama perlu membayar ko