Summary judgment can be awarded when a defendant fails to raise a triable issue and is established liable under a guarantee agreement.

A. Introduction

[1] This is an application for summary judgment based on a guarantee dated 9 May 2012 (guarantee) given by the defendant (defendant) to the plaintiff company (plaintiff). If the summary judgment application is allowed, the novel issue raised in this case is whether the court may grant costs to the plaintiff on an indemnity basis (as expressly provided in the guarantee) or is the court only empowered under O 59 r 22(1)(c)(i) of the Rules of 2012 ( ROC ) to grant costs within the range stipulated in Part 1 of the Appendix to O 59 .

B. Facts

[2] The plaintiff has supplied goods to EW Plastic Sdn Bhd (EWPSB).

[3] In the guarantee, in consideration of the plaintiff at the defendant's request to sell and supply goods to EWPSB, the defendant agreed with and unconditionally and irrevocably guaranteed as follows:

(a) the defendant will pay to the plaintiff "on demand all money which now is or may during the operation of this guarantee be owing to (the plaintiff) from (EWPSB) or remain unpaid, and all costs charges and expenses which (the plaintiff) may incur in .... obtaining or seeking to obtain payment of all or any part of the money hereby guaranteed" (cl 1);

(b) the guarantee "shall not be considered as satisfied by any intermediate payment or satisfaction of the whole or any part f any sum or sums of money owing as aforesaid but shall be a continuing security and shall extend to cover all or any sum or sums of money which shall for the time being constitute the balance due or owing from (EWPSB) to (the plaintiff) upon any such account as hereinbefore mentioned notwithstanding that any such account shall cease to be current for any reason whatsoever and notwithstanding any settlement of account whatsoever" (cl 3);

(c) the guarantee "shall be without prejudice to and shall not be affected nor shall the (defendant) .... be released or exonerated by any of the matters following:

....

(iii) any time given or extended to (EWPSB) and/or any other person .... including the (defendant) .... or any other indulgence granted to or compromise composition or arrangement made with (EWPSB) and/or any other person .... with or without consent or notice to the (defendant) (cl 4(iii));

(iv) the illegality, ...., unenforceability, invalidity or defect in any obligations of (EWPSB) .... to (the plaintiff) due to any reasons whatsoever (cl 4(iv)); ....";

(d) "A statement signed by (the plaintiff's) Director or any one of (the plaintiff's) authorised personnel as to the money and liabilities for the time being due or incurred to [the plaintiff] from or by the defendant shall be conclusive evidence in any legal proceedings against the (defendant) .... for all purposes" (cl 6);

(e) as between the plaintiff and the defendant, the defendant "shall be deemed to be principal debtor for all the moneys the payment of which is hereby guaranteed and accordingly shall not be discharged nor shall the (defendant's) liabilities be affected by any fact or circumstances or any act thing omission or means whatsoever whereby the (defendant's) liabilities would not have been discharged if the (defendant) had been the principal debtor" (cl 8);

(f) as "separate and independent stipulations":

(i) (the defendant) hereby agrees that all sums of money which may not be recoverable from the (defendant) on the footing of a guarantee whether by reason or any legal or statutory limitation disability or incapacity on or of (EWPSB) or any other fact or circumstances whether known to (the plaintiff) or not shall nevertheless be recoverable from the (defendant) on demand