Yong Tet Miaw and Another v MBf Finance Bhd

• Judge: Karthigesu J
• Judgment Date: 22 August 1992
• Neutral Citation: [1992] SGCA 52
• Citation: [1992] SGCA 52
• Defendant Counsel: Nirmala Nair (Madhavan Louis & Partners)
• Published date: 19 September 2003
• Plaintiff Counsel: Benedict Vijayan Peter (Ramdas & Wong)
• Date: 22 August 1992
• Docket Number: Civil Appeal No 118 of 1990
• Court: Court of Appeal (Singapore)
• Subject Matter: Whether judgment was bad for vagueness and ambiguity,Foreign judgments,O 67 r 9(3) Rules of the Supreme Court 1970,s 3(1) & (3)(b) Reciprocal Enforcement of Commonwealth Judgments Act (Cap 264),Registration of Malaysian judgement,Application to set aside registration of judgment on ground that enforcement would not be 'just or convenient',Conflict of Laws

The appellants appealed against an order of the High Court refusing to set aside the registration of a judgment of the High Court of Malaya at Kuala Lumpur in Civil Suit No C23-1760-86 dated 13 April 1988, (`the judgment`) registered under the provisions of the Reciprocal Enforcement of Commonwealth Judgments Act (Cap 264) (`the Act`). We dismissed the appeal, with costs, on 27 May 1992. We now give our reasons.

The appellants by a `letter of guarantee` in writing dated 24 May 1984, jointly and severally guaranteed the repayment of a loan which the respondents (`MBf`), at the appellants` request, had agreed to grant to Sun Hun Perumahan Sdn Bhd (`Sun Hun`). The relevant provisions of the letter of guarantee were the following:

Section 2.01

In consideration of the lender`s (MBf) promise to grant the loan to the borrower (Sun Hun) at our request and upon such terms as the lender deems fit, we hereby jointly and severally guarantee repayment to the lender all sums of money together with interest costs charges and all other sums payable by the borrower in the event of the borrower`s default in paying interest due under the loan or in the repayment of the loan or any part thereof or the breach of any terms governing the loan by the borrower. 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 any 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 and any amount payable by the borrower arising from such default.

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. Such obligations shall not be subject to any prior notice to us with regard to any default of the borrower and shall not be impaired by any extension of time forebearance or concession given to the borrower and/or to us or any assertion of or failure to assert any right or remedy against the borrower and/or us or in respect of any security created by or in pursuance of the terms of the loan and/or any modification or amplification of the provisions thereof contemplated by the terms thereof or any failure of the borrower to comply with any requirements or any law regulations or order in Malaysia or of any political sub-division or agency thereof.

Section 7.01

If the borrower shall in any respect fail to perform any of its obligations governing the loan or commits any breach of its obligations pertaining thereto then we shall, in addition to our liability herein, jointly and severally as a separate covenant indemnify the lender and its respective assigns representatives and successors-in-title against all losses damages costs expenses or otherwise which may be incurred by the lender by reason of any default on the part of the borrower in performing and observing the agreements conditions covenants and undertakings on its part to be observed and performed.

Section 7.03

It is hereby agreed that any admission or acknowledgement in writing by the borrower or by any person authorized on behalf of the borrower or a judgment (by default or otherwise obtained against the borrower) or a statement of account in writing showing the indebtedness of the borrower in relation to the subject matter of this guarantee which is duly certified by an authorized officer of the lender shall be binding and conclusive evidence against us and our respective heirs, executors representatives and successors-in-title as the case may be for whatever purpose including as being conclusive evidence of indebtedness in a court of law.

It will be seen from these provisions of the letter of guarantee that the appellants` liability thereunder was strict and comprehensive.

The loan to Sun Hun by MBf was evidenced by an agreement in writing dated 29 May 1984. It was a detailed document providing for a loan in the maximum principal amount of ringgit one million seven hundred and fifty thousand (M$1.75m) (s 1.02); that the expressions `the guarantee` and `the guarantors` used in the agreement referred indisputably to the letter of guarantee given by the appellants on 24 May 1984 (s 2.01(i) and (j)); for the charging of interest on the principal sum at the rate of 15.5% pa or such other rate at the total discretion of MBf with monthly rests and for its payment on a monthly basis (ss 7.01 and 7.03); for the repayment of the principal sum by the stated three quarterly instalments (s 8.01); for the provision of security (s 9.01); the events of default (s 12.0); for the sale of the properties given by way of security in the event of default and the application of the proceeds of sale (ss 12.02 and 12.03); and for late payment interest (s 12.04) amongst several other detailed provisions which are not relevant for present purposes.

MBf commenced proceedings against the appellants in the High Court of Malaya at Kuala Lumpur in Civil Suit No C23-1760-86 on 19 June 1986, claiming that Sun Hun had defaulted in the repayment of the loan and the payment of interest. Accordingly, under the provisions of the letter of guarantee, they claimed a sum of M$2,038,068.16 as at 31 January 1986 made up as to principal of M$1.75m, as to interest of M$260,895.37 and as to penalty interest of M$27,172.79.

Both appellants entered appearance and contested MBf`s application for summary judgment under the O 14 procedure, a procedure not unlike our own O 14 procedure. The appellants were legally represented at the hearing and relied on an affidavit filed by the second appellant on his own behalf and on behalf of the first appellant. The reasons bespoken in the second appellant`s affidavit opposing summary judgment were that MBF...