TU PIEK FUNG vs RHB BANK BERHAD (MJLR2009a24) Rhodzariah Bujang SS
[ CA 12-23-2009-II ]
1
MALAYSIA
IN THE HIGH COURT OF SABAH AND SARAWAK AT KUCHING
CIVIL APPEAL: 12-23-2009-II
BETWEEN
TU PIEK FUNG (WN.KP.830822-13-5792)
(Sued as Guarantor)
No. 111, Lot 6478
Jalan Sungai Apong
93450 Kuching, Sarawak. … Appellant
AND
RHB BANK BERHAD (Company No.6171-M)
Lots 170-172
Jalan Chan Chin Ann
931000 Kuching. … Respondent
(In the matter of Session’s Court Summons NO.52-826-2008-I)
BETWEEN
RHB BANK BERHAD (Company No.6171-M)
Lots 170-172
Jalan Chan Chin Ann
931000 Kuching. … Plaintiff
AND
1. LAI SAY FUNG (WN.KP.701119-13-5052)
(Sued as Hirer)
No.6480 Sungai Apong,
93450 Kuching, Sarawak. … 1st Defendant
[ CA 12-23-2009-II ]
2
2. TU PIEK FUNG (WN.KP.830822-13-5792)
(Sued as Guarantor)
No. 111, Lot 6478
Jalan Sungai Apong
93450 Kuching, Sarawak. … 2nd Defendant
3. CHAN SOONG MING (WN.KP.650914-13-5599)
(Sued as Guarantor)
No.6480 Sungai Apong
93450 Kuching, Sarawak. … 3rd Defendant
BEFORE THE HONOURABLE JUDICIAL COMMISSIONER
Y.A. PUAN RHODZARIAH BT. BUJANG
IN CHAMBERS
JUDGMENT
The appellant was sued as a guarantor in a hire purchase agreement
in which a sum of RM50,995.00 was due and owing following termination of
the agreement by the respondent/owner after the 1st defendant defaulted in
the monthly installments. Judgments by admission were entered against
the 1st, and 3rd defendants on 17th September, 2009. The appellant/2nd
defendant was represented by Legal Aid Bureau and disputed the claim but
on application of the respondent, summary judgment was entered against
her on 18th March, 2009. Against that decision, the appellant appealed.
[ CA 12-23-2009-II ]
3
The appeal:
The points submitted on appeal are these:
(i) The respondent’s deponent Ho Kok Munting @ Munting Anak
Eja has no authority to act on behalf of the plaintiff.
(ii) The Guarantee and indemnity was not executed before a
Magistrate, Commissioner for Oath or a Notary Public under
section 22 of Hire Purchase Act.
(iii) No proper service of Hire Purchase Agreement, letter of
demand, letter of termination, statutory notices, summons
and statement of claim on the appellant.
(iv) The appellant has other defences which are not pleaded in
the statement of defence.
Authority of Ho Kok Munting
In her affidavit in Opposition affirmed on 19.12.2008 the appellant
challenged Ho Kok Munting’s authority to depose the affidavit in support of
the summary judgment application. In view of this challenge, Ho Kok
Munting then exhibited a copy of the Power of Attorney granted to him by
the respondent in his Affidavit in Reply affirmed on 12.1.2009. The
[ CA 12-23-2009-II ]
4
appellant’s counsel submitted that this Power of Attorney was therefore
filed out of time. With respect, he is clearly wrong. The Power of Attorney
was exhibited upon a challenge mounted by her which, had there not been
such a challenge, would not be necessary as the defendant being a Senior
Manager of the Bank obviously has the authority to affirm the affidavit on
behalf of the respondent. The appellant’s counsel has also
miscomprehend the law when he said the Power of Attorney should be
filed under Order 26A r 2(2) not Order 24 r 4(2)b of the Subordinate Court
Rules 1980. My short answer to his contention is the roles played by these
two Orders are complementary, not mutually exclusive in nature.
Execution of guarantee and indemnity before a Magistrate,
Commissioner for Oath or a Notary Public.
Section 22 of the Hire Purchase Act is only operative if the guarantor
agrees to pay the owner an aggregate sum which is larger than the balance
originally payable under the agreement or if his obligation extends to goods
which are not the subject matter of the hire purchase agreement. In these
two circumstances, he must execute the agreement before the notable
persons mentioned above. This is a safeguard to ensure that the guarantor
knows that his liability would be over and above what the hirer himself has
to pay under the hire purchase agreement. Having examined both the hire
purchase agreement and the guarantee agreement in this case, it is
apparent to me that none of the two situations mentioned above were
present.
[ CA 12-23-2009-II ]
5
Improper service of documents
The plaintiff has exhibited proof that the hire purchase agreement, the
statutory notices and the letter of demand were served by way of prepaid
registered post. This has been agreed between parties by clause 7 of the
guarantee and the mode of service extends to the summons and statement
of claim as well and shall be deemed to have been served 72 hours after
the date of posting. The appellant’s appeal on this ground is again
untenable.
Other defences of the defendant
In her defence, the appellant pleaded that the guarantee agreement
was not voluntarily executed by her and that it was not read and explained
to her. Thirdly, she pleaded that it was not executed before the notable
persons mentioned earlier. In her affidavit in opposition, other than these
issues, the issues raised in this appeal were also alluded to.
In respect of the execution of the guarantee against her will, it
remains a bare allegation without any particulars being deposed, i.e. the
circumstances in which she has been forced to execute the guarantee and
if that be true, what steps has she taken after the execution to nullify her
assent to be a guarantor to the hirer. Her affidavit evidence must disclose
facts which makes her defence triable in order to justify her contention that
she has defences other than the ones pleaded in the statement of claim.
This she has failed to do.
[ CA 12-23-2009-II ]
6
For the reasons given above, the appeal is dismissed.
Sgd.
(Y.A. PUAN RHODZARIAH BT. BUJANG)
Judicial Commissioner
High Court II Kuching
Date of Judgment: 15.5.2009
For Appellant : Mr. Steven Beti,
Legal Aid Bureau
For Respondent: Miss Winnie Chan,
M/S. David Allan, Sagah & Teng Advocates,
Kuching.
1
MALAYSIA
IN THE HIGH COURT OF SABAH AND SARAWAK AT KUCHING
CIVIL APPEAL: 12-23-2009-II
BETWEEN
TU PIEK FUNG (WN.KP.830822-13-5792)
(Sued as Guarantor)
No. 111, Lot 6478
Jalan Sungai Apong
93450 Kuching, Sarawak. … Appellant
AND
RHB BANK BERHAD (Company No.6171-M)
Lots 170-172
Jalan Chan Chin Ann
931000 Kuching. … Respondent
(In the matter of Session’s Court Summons NO.52-826-2008-I)
BETWEEN
RHB BANK BERHAD (Company No.6171-M)
Lots 170-172
Jalan Chan Chin Ann
931000 Kuching. … Plaintiff
AND
1. LAI SAY FUNG (WN.KP.701119-13-5052)
(Sued as Hirer)
No.6480 Sungai Apong,
93450 Kuching, Sarawak. … 1st Defendant
[ CA 12-23-2009-II ]
2
2. TU PIEK FUNG (WN.KP.830822-13-5792)
(Sued as Guarantor)
No. 111, Lot 6478
Jalan Sungai Apong
93450 Kuching, Sarawak. … 2nd Defendant
3. CHAN SOONG MING (WN.KP.650914-13-5599)
(Sued as Guarantor)
No.6480 Sungai Apong
93450 Kuching, Sarawak. … 3rd Defendant
BEFORE THE HONOURABLE JUDICIAL COMMISSIONER
Y.A. PUAN RHODZARIAH BT. BUJANG
IN CHAMBERS
JUDGMENT
The appellant was sued as a guarantor in a hire purchase agreement
in which a sum of RM50,995.00 was due and owing following termination of
the agreement by the respondent/owner after the 1st defendant defaulted in
the monthly installments. Judgments by admission were entered against
the 1st, and 3rd defendants on 17th September, 2009. The appellant/2nd
defendant was represented by Legal Aid Bureau and disputed the claim but
on application of the respondent, summary judgment was entered against
her on 18th March, 2009. Against that decision, the appellant appealed.
[ CA 12-23-2009-II ]
3
The appeal:
The points submitted on appeal are these:
(i) The respondent’s deponent Ho Kok Munting @ Munting Anak
Eja has no authority to act on behalf of the plaintiff.
(ii) The Guarantee and indemnity was not executed before a
Magistrate, Commissioner for Oath or a Notary Public under
section 22 of Hire Purchase Act.
(iii) No proper service of Hire Purchase Agreement, letter of
demand, letter of termination, statutory notices, summons
and statement of claim on the appellant.
(iv) The appellant has other defences which are not pleaded in
the statement of defence.
Authority of Ho Kok Munting
In her affidavit in Opposition affirmed on 19.12.2008 the appellant
challenged Ho Kok Munting’s authority to depose the affidavit in support of
the summary judgment application. In view of this challenge, Ho Kok
Munting then exhibited a copy of the Power of Attorney granted to him by
the respondent in his Affidavit in Reply affirmed on 12.1.2009. The
[ CA 12-23-2009-II ]
4
appellant’s counsel submitted that this Power of Attorney was therefore
filed out of time. With respect, he is clearly wrong. The Power of Attorney
was exhibited upon a challenge mounted by her which, had there not been
such a challenge, would not be necessary as the defendant being a Senior
Manager of the Bank obviously has the authority to affirm the affidavit on
behalf of the respondent. The appellant’s counsel has also
miscomprehend the law when he said the Power of Attorney should be
filed under Order 26A r 2(2) not Order 24 r 4(2)b of the Subordinate Court
Rules 1980. My short answer to his contention is the roles played by these
two Orders are complementary, not mutually exclusive in nature.
Execution of guarantee and indemnity before a Magistrate,
Commissioner for Oath or a Notary Public.
Section 22 of the Hire Purchase Act is only operative if the guarantor
agrees to pay the owner an aggregate sum which is larger than the balance
originally payable under the agreement or if his obligation extends to goods
which are not the subject matter of the hire purchase agreement. In these
two circumstances, he must execute the agreement before the notable
persons mentioned above. This is a safeguard to ensure that the guarantor
knows that his liability would be over and above what the hirer himself has
to pay under the hire purchase agreement. Having examined both the hire
purchase agreement and the guarantee agreement in this case, it is
apparent to me that none of the two situations mentioned above were
present.
[ CA 12-23-2009-II ]
5
Improper service of documents
The plaintiff has exhibited proof that the hire purchase agreement, the
statutory notices and the letter of demand were served by way of prepaid
registered post. This has been agreed between parties by clause 7 of the
guarantee and the mode of service extends to the summons and statement
of claim as well and shall be deemed to have been served 72 hours after
the date of posting. The appellant’s appeal on this ground is again
untenable.
Other defences of the defendant
In her defence, the appellant pleaded that the guarantee agreement
was not voluntarily executed by her and that it was not read and explained
to her. Thirdly, she pleaded that it was not executed before the notable
persons mentioned earlier. In her affidavit in opposition, other than these
issues, the issues raised in this appeal were also alluded to.
In respect of the execution of the guarantee against her will, it
remains a bare allegation without any particulars being deposed, i.e. the
circumstances in which she has been forced to execute the guarantee and
if that be true, what steps has she taken after the execution to nullify her
assent to be a guarantor to the hirer. Her affidavit evidence must disclose
facts which makes her defence triable in order to justify her contention that
she has defences other than the ones pleaded in the statement of claim.
This she has failed to do.
[ CA 12-23-2009-II ]
6
For the reasons given above, the appeal is dismissed.
Sgd.
(Y.A. PUAN RHODZARIAH BT. BUJANG)
Judicial Commissioner
High Court II Kuching
Date of Judgment: 15.5.2009
For Appellant : Mr. Steven Beti,
Legal Aid Bureau
For Respondent: Miss Winnie Chan,
M/S. David Allan, Sagah & Teng Advocates,
Kuching.
