JCW

[Striking out – liability of guarantor – issue of res judicata] Justin was the counsel for the respondent/defendant. The plaintiff filed a suit against the principal borrower and at the same time, also subsequently filed a suit against the guarantors, one of them is the defendant in this case. The suit against the principal borrower was dismissed by the Court of Appeal and the principal borrower’s counterclaim against the plaintiff was allowed with damages to be assessed. The plaintiff filed a notice of motion for leave to appeal to the Federal Court. Following the Court of Appeal’s decision which dismissed the plaintiff’s claim against the principal borrower, the defendant in this case, filed an application to strike out the plaintiff’s claim. The High Court allowed the defendant’s application but the Court of Appeal allowed the plaintiff’s appeal and held that the defendant having given a guarantee, is primarily liable for losses and his liability is not dependent or secondary to the liability of the principal borrower. On the issue of res judicata, the Court of Appeal held that since the notice of motion for leave to appeal to the Federal Court is still pending, the issue of the liability of the principal borrower cannot be considered as res judicata. (Note : This Court of Appeal decision has been subsequently reversed by the Federal Court on 5/9/2017 in Federal Court Civil Appeal No. 02(f)-57-05/2017(W))