Standard Chartered Bank Malaysia Bhd

- vs -

Hua Hung Sawmill Co Sdn Bhd

Judgment

Sulaiman Daud, JC

1. This is an appeal by the first, second, third, fourth and fifth defendants (collectively referred to as "the defendants") against the decision of the learned Deputy Registrar dismissing the defendants' preliminary objection made in the course of hearing the plaintiffs respective application under Ord. 14 of the Rules of the High Court 1980 ("the RHC 1980") to enter final judgment against each of the defendants (Encls 16 to 20). All the five applications were heard together. The objection relates to the affidavits sworn by Cynthia Lo Meng, namely the first affidavit dated April 11, 2001 in support of each of such applications ("the affidavits in support"), and two other affidavits in reply both affirmed on May 25, 2001 ("the affidavits in reply"). The learned counsel for the defendants urged the court not to use all of such affidavits as the same are said to be defective for the following reasons, that is to say:-

   • firstly the affidavits in support failed to comply with Ord. 14 r 2(1) of the RHC as the statement as specified in paragraph 2 of Form 18 thereof are not included in the said affidavits; and

   • secondly both the affidavits in support and the affidavits in reply failed to comply with Ord. 41 r 9(2) of the RHC for failure to indorse the date of their filing thereon.

2. I will firstly deal with the first objection on the non-compliance with Ord. 14 r 2(1) and Form 18. A number of cases have been cited by the learned counsel for the defendants in support of the first objection which I shall refer, but I should say at once that most of the cases so cited substantially deal with non-compliance of Ord. 14 r 2(1) itself rather than Form 18, which forms the basis of the first objection. The case of Supreme Leasing Sdn Bhd v Dior Enterprise [1990] 2 MLJ 36 is more concerned with the manner of verification of facts in the context of Ord. 14 r 2(1). In Tan Tik Sing v Gomez Development Co Sdn Bhd [1979] 2 MLJ 78 the plaintiffs application for summary judgment under Ord. 14A was held to be deficient for want of compliance with Ord. 14A r 1(1) since the plaintiff has failed to say in his affidavit that in his belief there was no defence to the action.

3. In the other two cases, namely National Company for Foreign Trade v Kayu Raya Sdn Bhd [1984] 2 MLJ 300 and Pembinaan KSY Sdn Bhd v Liang Seng Properties Sdn Bhd [1993] 1 MLJ 316, the plaintiff s application for summary judgment under Ord. 14 was dismissed for non-compliance with Ord.... 14 r 2(1) as the affidavits in support failed to verify the facts in which the claims are based. In British American Life & General Insurance Bhd v Pembinaan Fal Bhd [1994] 3 MLJ 267, the application under Ord. 14 was also dismissed on the ground that in the plaintiffs affidavit-in-support there was no deposition to the belief that there is no defence to the claim.

4. It is to be noted that all the above-stated cases were decided on the ground of non-compliance with the provisions of Ord. 14 r 2(1) itself, being either the failure to verify in the affidavits the facts on which the claim to which the application relates is based or to state therein the deponent's belief that there is no defence to the claim. In all these cases the effect on the omission of the statement in paragraph 2 of Form 18 from the affidavit-in-support were never raised as an issue. However in British American Life & General Insurance Bhd v Pembinaan Fal Bhd Richard Talalla J made the observation, at p 269, that "... the supporting affidavit must state the plaintiffs belief as required by r 2(1) and Form 18 referred to therein ...".

5. Similarly in Pembinaan KSY Sdn Bhd v Liang Seng Properties Sdn Bhd Lim Beng Choon J also stated, at p 325, that -

   The deponent must then go on to affirm that - It is within my knowledge that the said debt was incurred and is still due and owing as aforesaid.

6. The observation of the learned Judges were however only made in passing without further deliberation on the effect of non-compliance with the said Form 18.

7. In Yap Piew Chuan v Araca Enterprise Sdn Bhd [1998] 1 AMR 645 one of the grounds raised by the defendant for the dismissal of the plaintiffs application under Ord. 14 was that the affidavit-in-support was defective. The defect complained of is similar to that raised in the present appeal in that the statement in paragraph 2 of Form 18 "that the said debt was incurred and is still due and owing as aforesaid" had not been included in the affidavit-in-support of the application. In holding that the affidavit in question complies with Form 18, Abdul Aziz Mohamad J stated as follows:-

   Although the plaintiffs written submission has dealt at length on this alleged defect, I shall simply say that I do not consider the failure to include paragraph 2 of Form 18 is fatal to the application. Considering the affidavit as a whole, I am satisfied that it does amount to the plaintiff saying that the debt was incurred and was still due and owing.

8. I fully agree with the principle adopted by the learned Judge in coming to his finding. In my view the fact that the said statement only appears in Form 18 and not in the substantive provision of Ord. 14 r 2(1) itself further supports the view of the learned Judge in the later case. In the present action the plaintiff is suing all the five defendants for the amount outstanding under an overdraft facility in the sum of RM511,924.59, and converted fixed loan facilities in the sum of RM193,719.65. The first defendant is being sued as the principal debtor while the second to the fifth defendants are sued in their capacity as the guarantors to the facilities granted by the plaintiff to the first defendant.

9. I now turn to the affidavit in question. Upon perusal of all the affidavits in support of each of such applications it can be seen that paragraphs 5 to 29 of the affidavits contained the verification of facts on which the claim to which the application relates is based, and in paragraph 32 the deponent states his belief that the defendants, as the case may be, have no defence to the plaintiffs claim. I therefore hold that all the said affidavits have met the requirement of Ord. 14 r 2(1) in respect of the verification and the statement of his belief as required therein. With regard to the statement in paragraph 2 of Form 18, considering the affidavits in support as a whole I am satisfied that (in the words of Abdul Aziz Mohamad J) it does amount to the plaintiff saying that the debt was incurred and was still due and owing, especially from the averment in paragraph 30 thereof. For the aforesaid reason I am of the view that the affidavit in support of Cynthia Lo Mee Ling in support of each the plaintiffs summons-in-chambers herein (Encls 16 to 20) have substantially complied with the requirements of Ord. 14 r 2(1) and Form 18 of the RHC. I therefore dismissed the appeal on the first preliminary objection.

10. The second preliminary objection raised before the learned Deputy Registrar is that both the affidavits in support and the affidavits in reply affirmed by the said Cynthia Lo Mee Ling in respect of the application are defective as the said affidavits were not endorsed with the date of filing as required under Ord. 41 r 9(2) of the RHC. From the numerous authorities cited by the learned counsel for the defendants, in my opinion only the case of Utama Merchant Bank Bhd v Mohd Nadzmi Mohd Salleh [2001] 2 AMR 1687 is directly related to the point in issue. In that case the learned Judicial Commissioner refused to accept two affidavits in an Ord. 14 application for the reason that "the affidavits in question do not contain any endorsement relating to the dates of swearing and filing".

11. Ord. 41 r 9(2) of the RHC 1980 under which the objection is made read as follows:-

    Every affidavit must be indorsed with a note showing on whose behalf it is filed and the dates of swearing and filing, and an affidavit which is not so endorsed may not be filed or used without leave of the court.

12. It is clear from the aforesaid provisions that an affidavit that is not so endorsed is not completely shut out from being used in any proceedings. The party relying on the affidavit still has the avenue of seeking leave from the court for the use of the same. From the ruling of the learned Deputy Registrar it is obvious that the learned counsel for the plaintiff has sought the leave of the court for the use of the affidavits in question, where at p 8 of his written ruling the learned Deputy Registrar stated as follows:

    ... learned counsel for the plaintiff further submitted that in the event that the court finds that there is a breach, learned counsel for the plaintiff made application for leave from the court to use the two affidavits under Ord. 2 r (1) Rules of High Court. It is without doubt that provision under Ord. 42 r 9(2) [should be Ord. 41 r 9(2)] Rules of the High Court ought to be complied with. On similar tone, I am in full agreement with the observation of learned Judicial Commissioner in Utama Merchant Bank (supra). Nevertheless, the observation made on authorities of Bank Bumiputra Bhd v Syarikat Gunong Tujoh Sdn Bhd [1996] 1 MLJ 298 and MBSB & Lesco Development Corp Sdn Bhd [1988] 3 MLJ 273 ought not to be ignored in which the court ruled that discretion ought to be exercised under accepted circumstances. It is therefore upon the court to consider under its wide discretion to correct irregularities and in so doing would of course consider if such discretion to cure irregularity would in any way cause any prejudice to the other party. Upon perusal of the plaintiff's affidavit-in-support and affidavit-in-reply, it seems clear to me that there is a total absence of the word "swearing" and filing dates indorsed on the affidavit. In the premises, there is truly a clear breach of Ord. 41 r 9(2) of Rules of High Court. Nonetheless, the plaintiff has made an application urging this court to exercise its discretion to regularise, such breach. Hence upon giving consideration to this application, the primary concern is whether, by allowing this application, would it in any way prejudice the defendant. The direct answer is of cause [course] in the negative. Under this given circumstance, I am minded to follow the judgment of Syed Idid J in Metrojaya Sdn Bhd v BTC Clothier [1996] 5 MLJ 45 which His Lordship ruled that the primary concern of the court should be an achievement of justice. In this sense, following the ruling in Metrojaya's case, I allow the application of the plaintiff to use the affidavit as provided under Ord. 41 r 4 of the Rules of High Court ....

13. Since the learned Deputy Registrar in the exercise of his discretion under Ord. 41 r 4 and r 9(2) has allowed the plaintiffs application to use the relevant affidavits in spite of such omission, I consider the appeal by the defendants based on the second objection relating to the use of the "defective affidavits" is now redundant. If the defendants are not satisfied with the leave granted by the learned Deputy Registrar for the plaintiff to use the affidavits in question then their appeal must relate to the exercise by the learned Deputy Registrar of his discretion in allowing the use of such affidavit and stating the reason therefor. It is obvious that no such appeal is made. I will dismiss the second objection raised on this ground alone.

14. However had the plaintiff made the application to this court for the use of the affidavits in question I will not hesitate to grant leave for the use of the same on the same ground advanced by the learned Deputy Registrar above.

15. Accordingly I dismiss the appeal on both the preliminary objections of the first, second, third, fourth and fifth defendants. However I made no order as to costs.

Cases

British American Life & General Insurance Bhd v Pembinaan Fal Bhd [1994] 3 MLJ 267; National co. for Foreign Trade v Kayu Raya Sdn Bhd [1984] 2 MLJ 300; Pembinaan KSY Sdn Bhd v Liang Seng Properties Sdn Bhd [1993] 1 MLJ 316; Supreme Leasing Sdn Bhd v Dior Enterprise [1990] 2 MLJ 36; Tan Tik Sing v Gomez Development Co Sdn Bhd [1979] 2 MLJ 78; Utama Merchant Bank Bhd v Mohd Nadzmi Mohd Salleh [2001] 2 AMR 1687; Yap Piew Chuan v Araca Enterprise Sdn Bhd [1998] 1 AMR 645

Legislations

Rules of the High Court 1980: Ord.14, Ord.14 r 2(1), Ord.14A r 1(1), Ord.41 rr 4, 9(2), para.2 of Form 18

Representation

Gabriel Kok (Khoo & Co) for Plaintiff

Kenny Yii (Yii & Co) for Defendant

Notes:-

This decision is also reported at [2002] 3 AMR 3497