Liew Ah Onn Kean Soon Hardware Sdn Bhd

Liew Ah Onn Kean Soon Hardware Sdn Bhd

The High Court held that although the 1st Defendant's written acknowledgment of debt (6.6.2013) produced a fresh accrual against the principal debtor under s26(2), section 28(4) of the Limitation Act 1953 prevents such an acknowledgment from binding the guarantor; consequently the claim against the 3rd Defendant was...

Source-derived case information.

Citation
WA-12ANCC-73-10/2019 (Mahkamah Tinggi)
Parties
Appellant / 3rd Defendant: Liew Ah Onn; Respondent / Plaintiff: Kean Soon Hardware Sdn Bhd; 1st Defendant / Principal Debtor: Imej Mesra Sdn Bhd; 2nd Defendant / Director and Co Guarantor: Ng Fay Chye
Court
High Court
Jurisdiction
Malaysia
Judgment Date
6 December 2019
Case Number
WA-12ANCC-73-10/2019 (Mahkamah Tinggi)
Procedural Posture
Civil Appeal From Sessions Court (strike Out and Summary Judgment) / High Court Judgment on Appeal
Outcome
Both appeals allowed; Sessions Court decisions set aside
Legal Topics
Limitation Period, Acknowledgement of Debt, Guarantor Liability, Summary Judgment, Strike Out, Laches, Estoppel
Civil Procedure Contract Law Law of Guarantees Limitation Law Limitation Period Acknowledgement of Debt Guarantor Liability Summary Judgment +3 more

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Parties

Liew Ah Onn

Appellant / 3rd Defendant

Kean Soon Hardware Sdn Bhd

Respondent / Plaintiff

Imej Mesra Sdn Bhd

1st Defendant / Principal Debtor

Ng Fay Chye

2nd Defendant / Director and Co Guarantor

Procedural Posture

Civil Appeal From Sessions Court (strike Out and Summary Judgment) / High Court Judgment on Appeal

Legal Issues

  1. 1 Whether an acknowledgment of debt by the principal debtor restarts limitation as against the guarantor
  2. 2 Whether the Plaintiff's claim against the guarantor is time barred under the Limitation Act 1953
  3. 3 Whether the defence of laches/estoppel applies to this claim

Ratio Decidendi

The High Court held that although the 1st Defendant's written acknowledgment of debt (6.6.2013) produced a fresh accrual against the principal debtor under s26(2), section 28(4) of the Limitation Act 1953 prevents such an acknowledgment from binding the guarantor; consequently the claim against the 3rd Defendant was time barred and the Sessions Court's allowance of summary judgment and dismissal of the strike out were wrong.

Court Disposition

Both appeals allowed; Sessions Court decisions set aside

Orders

  • Both appeals allowed
  • Summary judgment entered below set aside