BADANBAS SDN BHD DATUK CHE AZIZUDDIN BIN CHE ISMAIL

BADANBAS SDN BHD DATUK CHE AZIZUDDIN BIN CHE ISMAIL

The Guarantee expressly conditioned withdrawal of the winding-up petition on payment/postponement and ultimate payment by the defendant; those conditions were not met; part-payment by a third party did not discharge the defendant because full and final settlement remained outstanding and there was no assignment; the defendant's defences (lack of consideration, discharge under s92, acceptance under s42, unjust enrichment, coercion) were unarguable or inherently improbable in light of the Guarantee and contemporaneous documents; therefore the matter was appropriate for summary judgment and judgment was entered for the plaintiff for the unpaid balance with interest and costs.

Citation
WA-22NCVC-360-05/2021 (Mahkamah Tinggi)
Parties
Plaintiff: Badanbas Sdn Bhd; Defendant: Datuk Che Azizuddin bin Che Ismail
Court
High Court
Jurisdiction
Malaysia
Judgment Date
4 October 2021
Case Number
WA-22NCVC-360-05/2021 (Mahkamah Tinggi)
Procedural Posture
Civil Claim on a Personal Guarantee / Summary Judgment Application Under Order 14 and Striking Out Application Under Order 18 R19 (hearing on Summary Judgment and Strike Out)
Outcome
Summary judgment allowed for the Plaintiff; Defendant's strike-out application dismissed.
Legal Topics
Summary Judgment, Consideration, Discharge of Surety, Withdrawal of Winding Up Petition, Part Payment by Third Party, Unjust Enrichment, Coercion/undue Influence, Interest, Costs
Source Language
Malay/English
Contract Law Company Law Civil Procedure Suretyship and Guarantees Summary Judgment Consideration Discharge of Surety Withdrawal of Winding Up Petition +5 more

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Parties

Badanbas Sdn Bhd

Plaintiff

Datuk Che Azizuddin bin Che Ismail

Defendant

Procedural Posture

Civil Claim on a Personal Guarantee / Summary Judgment Application Under Order 14 and Striking Out Application Under Order 18 R19 (hearing on Summary Judgment and Strike Out)

Legal Issues

  1. 1 Whether the guarantee was enforceable or discharged for lack of consideration because the creditor did not immediately withdraw the winding-up petition
  2. 2 Whether the plaintiff's acceptance of part payment from a third party discharged the defendant under s42 Contracts Act 1950
  3. 3 Whether the creditor's conduct discharged the surety under s92 Contracts Act 1950

Ratio Decidendi

The Guarantee expressly conditioned withdrawal of the winding-up petition on payment/postponement and ultimate payment by the defendant; those conditions were not met; part-payment by a third party did not discharge the defendant because full and final settlement remained outstanding and there was no assignment; the defendant's defences (lack of consideration, discharge under s92, acceptance under s42, unjust enrichment, coercion) were unarguable or inherently improbable in light of the Guarantee and contemporaneous documents; therefore the matter was appropriate for summary judgment and judgment was entered for the plaintiff for the unpaid balance with interest and costs.

Court Disposition

Summary judgment allowed for the Plaintiff; Defendant's strike-out application dismissed.

Orders

  • Judgment entered for Plaintiff against Defendant in the sum of RM2,168,330.15
  • Interest awarded at the rate of 5% per annum on the balance principal sum of RM1,610,655.51 from 4.5.2021 until payment