MBF Finance Bhd v Yong Yet Miaw and Another

• Jurisdiction: Singapore
• Judge: Chao Hick Tin J
• Judgment Date: 31 December 1990
• Neutral Citation: [1990] SGHC 118
• Docket Number: Originating Summons No 726 of 1989
• Date: 31 December 1990
• Year: 1990
• Published date: 19 September 2003
• Plaintiff Counsel: Nirmala Nair (Madhavan Louis & Partners)
• Citation: [1990] SGHC 118
• Defendant Counsel: Benedict Vijayan Peter (Ramdas & Wong)
• Court: High Court (Singapore)
• Subject Matter: 'Not just or convenient',O 67 r 9(3) Rules of the Supreme Court 1970,Setting aside registration of foreign judgment,Words and Phrases,Guarantor relying on fact of debtor resisting creditor's claim,Foreign judgments,Whether there was sufficient reason,Civil Procedure,Reciprocal enforcement of judgments

On 13 April 1988, the judgment creditors, MBF Finance Bhd (hereinafter called MBF), obtained summary judgment in the High Court of Malaya in Kuala Lumpur for a sum of M$1,750,000 plus M$260,895.37, together with interest at 15% pa from 1 February 1986 until full payment and costs of M$250 against the first and second judgment debtors herein.

The judgment not being satisfied, MBF applied by this originating summons to have the judgment registered in Singapore pursuant to ss 3(1) and 5 of the Reciprocal Enforcement of Commonwealth Judgments Act (Cap 264) (the Act). The application was granted by the learned senior assistant registrar who on 29 November 1989 granted an order that the judgment be registered as a judgment of the High Court of Singapore. By that order liberty was also given to the judgment debtors, if they had grounds for so doing, to apply to the High Court of Singapore to have the registration of the judgment set aside. Accordingly, by way of a summons-in-chambers, the judgment debtors applied to have the registration set aside. The application was refused by the senior assistant registrar. The judgment debtors appealed and the matter came before me. I dismissed the appeal and I now give my reasons.

In support of the application to set aside the registration an affidavit was filed on 8 February 1990 by the second judgment debtor (who also deposed on behalf of the first judgment debtor). He said the following:

(i) the judgment arose out of a debt amounting to, including interest, M$2,038,068.16, allegedly owed by Sun Hun Perumahan Sdn Bhd (hereinafter called Sun Hun) to MBF;

(ii) MBF had in a separate action in Kuala Lumpur instituted on 5 November 1988 sued Sun Hun for the same, which claim was being resisted by Sun Hun on various grounds;

(iii) Sun Hun in a separate action in Kuala Lumpur instituted on 23 November 1989 sued MBF for, inter alia, breach of the loan agreement;

(iv) as the judgment sought to be registered in Singapore was directly connected with the two actions mentioned in (ii) and (iii) above, it would be unjust, in the event that Sun Hun should succeed in the two actions, to permit MBF to proceed with the enforcement of the judgment against the two judgment debtors herein.

I ought to state that the judgment was entered against the judgment debtors in the Kuala Lumpur High Court after their solicitor had made submission to the court. An appeal was in fact against the judgment. However, when the appeal came on for hearing, the judgment debtors` solicitor withdrew the appeal. Similarly, when their application for a stay of execution came up for hearing on 29 July 1988, the judgment debtors` solicitor requested MBF`s solicitor to mention on his behalf to have the application struck off. The judgment debtors in an affidavit filed herein on 19 March 1990 tried to explain that both the appeal and the application for a stay were withdrawn by their solicitor without their consent. They also blamed their solicitor for not correctly advising them of their rights.

Quite clearly the liability of the judgment debtors to MBF arose out of a guarantee which they signed in favour of MBF. The following were the relevant provisions of the guarantee:

Article II

Section 2(i)

In consideration of the lender` s (ie MBF) promise to grant the loan to the borrower, (ie Sun Hun) at our request ... we hereby jointly and severally guarantee repayment to the lender all sums of money ... payable by the borrower in the event of the borrower` s default ... Our liability herein is co-extensive with that of the borrower.

Section 2.02

If and whenever the borrower shall make default in the payment of the moneys due and payable hereunder we shall on demand by the lender pay to the lender all moneys in regard to which such default has been made by the borrower ...

Section 2.03

This guarantee is in addition to and not in substitution for any other rights which the lender may have against the borrower or any third party and may be enforced without first having recourse to any such rights and without taking any step or proceedings against the borrower or any other guarantor or indemnifier.

Section 3.01

We hereby declare that our obligations herein shall not be discharged except by performance and then only to the extent of such performance ...

Section 7.01

If

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